Up Legal Ethics Reviewer 2017

 

 

 

 

 

TABLE OF CONTENTS

B.1. IBP ................................................................. 21 B.2. UPHOLDING THE DIGNITY & INTEGRITY OF THE PROFESSION .............................................. 23 B.3. COURTESY, FAIRNESS & CANDOR TOWARDS PROFESSIONAL COLLEAGUES ...... 24 B.4. NO ASSISTANCE IN UNAUTHORIZED PRACTICE OF LAW ............................................. 25

LEGAL ETHICS I. PRACTICE OF LAW (RULE 138)................ 2 A. CONCEPT ...................................................... 2 A.1. DEFINITION.....................................................2 A.2. PRIVILEGE, NOT RIGHT .................................2 A.3. PROFESSION, NOT BUSINESS .....................2

C. TO THE COURTS (CANONS 10-13) .............. 27 C.1. CANDOR, FAIRNESS & GOOD FAITH TOWARDS THE COURTS ................................... 27 C.2. RESPECT FOR COURTS & JUDICIAL OFFICERS............................................................ 29 C.3. ASSISTANCE IN THE SPEEDY & EFFICIENT ADMINISTRATION OF JUSTICE .......................... 31 C.4. RELIANCE ON MERITS OF HIS CAUSE & AVOIDANCE OF ANY IMPROPRIETY WHICH TENDS TO INFLUENCE OR GIVES THE APPEARANCE OF INFLUENCE UPON THE COURTS .............................................................. 35

B. QUALIFICATIONS ......................................... 2 B.1. CITIZENSHIP ...................................................3 B.2. RESIDENCE ................................................... 4 B.3. AGE ................................................................ 4 B.4. GOOD MORAL CHARACTER ........................ 4 B.5. LEGAL EDUCATION ...................................... 4 B.6. BAR EXAMINATIONS .................................... 6

C. APPEARANCE OF NON-LAWYERS ...............7 C.1. LAW STUDENT PRACTICE ............................. 7 C.2. NON-LAWYERS IN COURTS......................... 8 C.3. NON-LAWYERS IN ADMINISTRATIVE TRIBUNALS .......................................................... 8 C.4. PROCEEDINGS WHERE LAWYERS ARE PROHIBITED FROM APPEARING ........................ 9 C.5. SELF-REPRESENTATION ............................. 9 C.6. AGENT OR FRIEND ....................................... 9

D. TO THE CLIENTS (CANONS 14-22) ............ 36 D.1. AVAILABILITY OF SERVICE WITHOUT DISCRIMINATION ............................................... 36 D.2. CANDOR, FAIRNESS AND LOYALTY TO CLIENTS .............................................................. 40 D.3. CLIENT’S MONEYS AND PROPERTIES ...... 44 D.4. FIDELITY TO CLIENT’S CAUSE ................... 46 D.5. COMPETENCE AND DILIGENCE ................ 46 D.6. REPRESENTATION WITH ZEAL WITHIN LEGAL BOUNDS ................................................. 48 D.7. ATTORNEY’S FEES ...................................... 49 D.8. PRESERVATION OF CLIENT’S CONFIDENCES.................................................... 54 D.9. WITHDRAWAL OF SERVICES ..................... 56

D. SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY ........... 10 D.1. LAWYERS WITHOUT AUTHORITY ............... 10 D.2. PERSONS NOT LAWYERS ........................... 10

E. PUBLIC OFFICIALS AND PRACTICE OF LAW .......................................................................... 10 E.1. PROHIBITION OR DISQUALIFICATION OF FORMER GOVERNMENT ATTORNEYS .............. 10

F. LAWYERS AUTHORIZED TO REPRESENT THE GOVERNMENT .......................................... 11 G. LAWYER’S OATH .......................................... 11

III. SUSPENSION, DISBARMENT, AND DISCIPLINE OF LAWYERS (RULE 139-B, RULES OF COURT) ...................................58

II. DUTIES AND RESPONSIBILITIES OF A LAWYER ................................................... 12

A. NATURE AND CHARACTERISTICS OF DISCIPLINARY ACTIONS AGAINST LAWYERS ......................................................................... 58

A. TO SOCIETY (CANONS 1-6) ......................... 12

A.1. SUI GENERIS ................................................ 58 A.2. PRESCRIPTION ........................................... 58 A.3. OTHER CHARACTERISTICS ........................ 58

A.1. RESPECT FOR LAW AND LEGAL PROCESSES ............................................................................. 12 A.2. EFFICIENT, CONVENIENT LEGAL SERVICES ............................................................................. 15 A.3. TRUE, HONEST, FAIR, DIGNIFIED & OBJECTIVE INFORMATION ON LEGAL SERVICES ............................................................................. 16 A.4 PARTICIPATION IN THE IMPROVEMENT AND REFORMS IN THE LEGAL SYSTEM..................... 18 A.5. PARTICIPATION IN LEGAL EDUCATION PROGRAM ........................................................... 18 A.6. APPLICABILITY TO GOVERNMENT LAWYERS............................................................. 19

B. GROUNDS ................................................... 59 C. PROCEEDINGS ........................................... 60 D. DISCIPLINE OF FILIPINO LAWYERS PRACTICING ABROAD .................................... 61 E. DISCIPLINE OF LAWYERS IN GOVERNMENT .......................................................................... 61 F. QUANTUM OF PROOF ................................ 61 G. DISCIPLINARY MEASURES ....................... 62 H. EFFECT OF EXECUTIVE PARDON ............. 63 I. EFFECT OF COMPROMISE AGREEMENTS . 63

B. TO THE LEGAL PROFESSION (CANONS 7-9) .......................................................................... 21

IV. READMISSION TO THE BAR ...............64 i

A. LAWYERS WHO HAVE BEEN SUSPENDED ......................................................................... 64 B. LAWYERS WHO HAVE BEEN DISBARRED 64 C. LAWYERS WHO HAVE BEEN REPATRIATED ......................................................................... 64 A. PURPOSE .................................................... 65 B. REQUIREMENTS ......................................... 65 C. COMPLIANCE .............................................. 66 D. EXEMPTIONS .............................................. 66 E. SANCTIONS ................................................. 67 F. BAR MATTER 2012: THE RULE ON MANDATORY LEGAL AID SERVICE (2009) ... 68

A. SUPREME COURT ....................................... 81 B. LOWER COURTS AND JUSTICES OF COURT OF APPEALS, AND SANDIGANBAYAN, AND COURT OF TAX APPEALS (RULE 140, ROC) .. 81 C. GROUNDS AND SANCTIONS .................... 83

VI. NOTARIAL PRACTICE (A.M. NO. 02-813-SC, AS AMENDED) .............................. 69 A. QUALIFICATIONS OF NOTARY PUBLIC .... 69 B. TERM OF OFFICE OF NOTARY PUBLIC ..... 69 C. POWERS AND LIMITATIONS ..................... 69 C.1. POWERS....................................................... 70 C.2. LIMITATIONS................................................ 71

D. NOTARIAL REGISTER ................................ 72 D.1. ENTRIES........................................................ 72 D.2. CLOSING ...................................................... 73 D.3. SUBMISSION................................................ 73

E. JURISDICTION OF NOTARY PUBLIC AND PLACE OF NOTARIZATION .............................73 F. REVOCATION OF COMMISSION ................ 74 G. COMPETENT EVIDENCE OF IDENTITY ...... 74 H. SANCTIONS ................................................ 75 H.2. CRIMINAL SANCTIONS ...............................75

VI. CANONS OF PROFESSIONAL ETHICS. 75 A. ORIGIN ........................................................ 75 B. LEGAL STATUS ........................................... 75

JUDICIAL ETHICS I. ADMINISTRATIVE JURISDICTION OVER JUDGES AND JUSTICES ........................... 77 A. SUPREME COURT........................................... 77 B. ALL OTHER COURTS ...................................... 77

II. DISQUALIFICATIONS OF JUSTICES AND JUDGES [RULE 137, ROC]......................... 78 A. COMPULSORY DISQUALIFICATION .......... 78 B. VOLUNTARY DISQUALIFICATION ............. 79 C. OBJECTION ................................................. 80

III. DISCIPLINE OF MEMBERS OF THE JUDICIARY AND INITIATION OF COMPLAINT AGAINST JUDGES AND JUSTICES ................................................. 81 ii

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knowledge, educational attainment, and even public trust since a lawyer is an officer of the court. A bar candidate who is morally unfit cannot practice law even if he passes the bar examinations [Aguirre v. Rana, B.M. 1036 (2003)].

I. Practice of Law (Rule 138) A. CONCEPT

While the practice of law is not a right but a privilege, the Court will not unwarrantedly withhold this privilege from individuals who have shown mental fitness and moral fiber to withstand the rigors of the profession [In re: Michael Medado]

A.1. DEFINITION The practice of law is any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. It is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill [Cayetano v. Monsod, G.R. No. 100113 (1991)].

A.3. PROFESSION, NOT BUSINESS Lawyering is not a business; it is a profession in which duty to public service, not money, is the primary consideration. The gaining of a livelihood is not a professional but a secondary consideration [Burbe v. Magulta, A. C. 99-634 (2002)].

According to Justice Padilla, in his dissent in Cayetano v. Monsod, the following factors are considered in determining whether there is practice of law: (1) Habituality –implies customarily or habitually holding one's self out to the public as a lawyer.

B. QUALIFICATIONS Any person admitted to the bar and who is in good and regular standing is entitled to practice law [Sec. 1, Rule 138, Rules of Court, hereinafter RoC].

(2) Application of law, legal principles, practice or procedure –calls for legal knowledge, training and experience. (3) Compensation–implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation, as a service for his livelihood or in consideration of his said services.

Every applicant for admission as a member of the bar must be: (1) Citizen of the Philippines; (2) At least 21 years of age; (3) Of good moral character; (4) Resident of the Philippines;

(4) Attorney-client relationship – Where a lawyer undertakes an activity which requires the knowledge of law but involves no such relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer.

(5) Produce before the Supreme Court satisfactory evidence:

The test is the activity, NOT who/what he or she is.

a.

Of good moral character;

b.

That no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines [Sec. 2, Rule 138, RoC].

Requisites for the practice of law:

A.2. PRIVILEGE, NOT RIGHT The right to practice law is not a natural or constitutional right but is a privilege. It is limited to persons of good moral character with special qualifications duly ascertained and certified. The exercise of this privilege presupposes possession of integrity, legal

(1) Admission to the bar: (a) Citizenship; (b) Residence; (c) Age (at least 21 years old); PAGE 2 OF 85

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(d) Good moral character and no charges involving moral turpitude 1.

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Filipino citizenship is a requirement for admission to the bar and is, in fact, a continuing requirement for the practice of law. The loss thereof means termination of the petitioner’s membership in the bar; ipso jure the privilege to engage in the practice of law. A Filipino lawyer who becomes a citizen of another country and later re-acquires his Philippine citizenship under RA 9225 (Citizenship Retention and Re-acquisition Act of 2003), remains to be a member of the Philippine Bar. However, the right to resume the practice of law is not automatic. RA 9225 provides that a person who intends to practice his profession in the Philippines must apply with the proper authority for a license or permit to engage in such practice. Thus, in pursuance to the qualifications laid down by the Court for the practice of law, the OBC requires the following:

The purposes for this requirement are: a. To protect the public; b. To protect the public image of lawyers; c. To protect prospective clients; and d. To protect errant lawyers from themselves [Dantes v. Dantes, A.C. 6486 (2004)].

(e) Legal education (consisting of pre-law and law proper); (f) Pass the bar examinations; (g) Take the lawyer’s oath; (h) Sign the roll of attorneys.

1) Petition for Re-Acquisition Philippine Citizenship;

(2) Good and regular standing:

of

2) Order (for Re-Acquisition of Philippine citizenship);

(a) Remain a member of the Integrated Bar of the Philippines (hereinafter IBP);

3) Oath of Allegiance to the Republic of the Philippines;

(b) Regularly pay all IBP dues and other lawful assessments

4) Identification Certificate (IC) issued by the Bureau of Immigration;

(c) Faithful observance of the rules and ethics of the legal profession (e.g.: (Mandatory Continuing Legal Education, hereinafter MCLE));

5) Certificate of Good Standing issued by the IBP; 6) Certification from the IBP indicating updated payments of annual membership dues;

(d) Be continually subject to judicial disciplinary control [Agpalo (2004)].

7) Proof of payment of professional tax; and

Passing the bar is not the only qualification to become an attorney-at-law. Two essential requisites for becoming a lawyer still had to be performed, namely: his lawyer’s oath to be administered by this Court and his signature in the roll of attorneys [Aguirre v. Rana, supra.].

8) Certificate of compliance issued by the MCLE Office. [Petition to Re-acquire

the Privilege to Practice Law of Muneses, B.M. 2112 (2012)].

Requirements under Sec. 5 (4) before applying with the Supreme Court for a license or permit to engage in law practice:

B.1. CITIZENSHIP The practice of all professions in the Philippines shall be limited to Filipino citizens save in cases prescribed by law [Sec. 14, Art. XII, 1987 Constitution].

1) Updating and payment of annual membership dues in the IBP; 2) Payment of professional tax; 3) Completion of 36 hours of MCLE; 4) Retaking of the lawyer’s oath

Ratio: Citizenship ensures allegiance to the Republic and its laws. PAGE 3 OF 85

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B.2. RESIDENCE Ratio: His/her duties to his client and to the court will require that he be readily accessible and available.

been charged. Concealment or withholding from the Court information about charges and indictments is a ground for disqualification of applicant or for revocation of license [Agpalo 2004].

B.3. AGE Ratio: Maturity and discretion are required in the practice of law.

By concealing pending criminal cases, the applicant (in a petition to take the Bar Examinations) then flunks the test of fitness even if the cases are ultimately proven to be unwarranted or insufficient to impugn or affect the good moral character of the applicant [In the Matter of the Disqualification

B.4. GOOD MORAL CHARACTER Absence of a proven conduct or act which has been historically and traditionally considered as a manifestation of moral turpitude. The act or conduct need not amount to a crime; and even if it does constitute an offense, a conviction upon a criminal charge is not necessary to demonstrate bad moral character although it may show moral depravity [Agpalo (2004)].

of Bar Examinee Haron S. Meling In The 2002 Bar Examinations and For Disciplinary Action As Member of The Philippine Shari’a Bar, B.M. 1154 (2004)].

B.5. LEGAL EDUCATION I. Pre-law An applicant for admission to the bar examination shall present a certificate issued by the proper government agency that, before commencing the study of law, he or she had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences.

This requirement is not only a condition precedent to admission to the practice of law, its continued possession is also essential for remaining in the practice of law. Good moral character is what a person really is, as distinguished from good reputation, the estimate in which he is held by the public in the place where he is known [In the Matter of

the Disqualification of Bar Examinee Haron S. Meling In The 2002 Bar Examinations and For Disciplinary Action As Member of The Philippine Shari’a Bar, B.M. 1154 (2004)].All

A Filipino citizen who completed and obtained his or her Bachelor of Laws degree or its equivalent in a foreign law school must present proof of having completed a separate bachelor's degree course. [Sec. 6, Rule 138, RoC as amended by Re: Letter of Atty. Mendoza, B.M. 1153 (2010)].

aspects of moral character and behavior may be inquired into in respect of those seeking admission to the Bar. The scope of such inquiry is, indeed, said to be properly broader than inquiry into the moral proceedings for disbarment. The requirement of good moral character to be satisfied by those who would seek admission to the bar must of necessity be more stringent than the norm of conduct expected from members of the general public. The Supreme Court may deny lawyer’s oathtaking based on a conviction for reckless imprudence resulting in homicide (hazing case). But after submission, for the Court’s examination and consideration, relevant evidence to show that he is a different person now, that he has become morally fit for admission to the ancient and learned profession of the law [In re: Argosino]

II. Law proper All applicants for admission shall, before being admitted to the examination, satisfactorily show that they have successfully completed all the prescribed courses for the degree of Bachelor of Laws or its equivalent degree, in a law school or university officially recognized by the Philippine Government or by the proper authority in the foreign jurisdiction where the degree has been granted. No applicant who obtained the Bachelor of Laws degree in this jurisdiction shall be admitted to the bar examination unless he or she has satisfactorily completed the following

Question of moral turpiture is for the Supreme Court to decide, which is why applicants are required to disclose any crime which they have PAGE 4 OF 85

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course in a law school or university duly recognized by the government: 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11)

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accommodation of students to undergo onthe-job training/practicum in the lower courts.

Civil Law Commercial Law Remedial Law Criminal Law Public International Law Private International Law Political Law Labor and Social Legislation Medical Jurisprudence Taxation Legal Ethics

Legal Education Board Under R.A. No. 7662 (Legal Education Reform Act of 1993), the Legal Education Board (LEB) was created in order to uplift the standards of legal education by undertaking appropriate reforms in the legal education system, requiring proper selection of law students, maintaining quality among law schools, and requiring legal apprenticeship and continuing legal education. It is comprised of a Chairman (preferably former justice of the Supreme Court or Court of Appeals), 4 regular members (a representative of the IBP, a representative of the Philippine Association of Law Schools (PALS), a representative from the ranks of active law practitioners, a representative from the law students' sector, and the Secretary of the Department of Education or his representative as an ex officio member.

A Filipino citizen who graduated from a foreign law school shall be admitted to the bar examination only upon submission to the Supreme Court of certifications showing: 1) Completion of all courses leading to

the degree of Bachelor of Laws or its equivalent degree;

The functions of the Board include:

2) Recognition or accreditation of the

law school by the proper authority; and

a) administering the legal education system in the country;

3) Completion of all the fourth year

b) supervising the law schools in the country;

subjects in the Bachelor of Laws academic program in a law school duly recognized by the Philippine Government. [Sec. 5, Rule 138, RoC as amended byRe: Letter of Atty. Mendoza, B.M. 1153 (2010)].

c) setting the standards of accreditation for law schools taking into account, among others, the size of enrollment, the qualifications of the members of the faculty, the library and other facilities, without encroaching upon the academic freedom of institutions of higher learning;

In B.M. No. 1552-A (2010), the Supreme Court approved the guidelines on the legal apprenticeship program in the Supreme Court and other collegiate appellate courts, allowing qualified 4th year law students to undergo the Legal Apprenticeship Program for at the said courts for at least 160 hours.

d) accrediting law schools that meet the standards of accreditation; e) prescribing minimum standards for law admission and minimum qualifications and compensation of faculty members;

In A.M. No. 15-04-03-SC (Re Letters of Justice Jose C. Vitug [Ret], Founding Dean of Angeles University Foundation (AUF) School of Law, dated 7 February 2015, and of Judge Ave A. Zurbito-Alba, Municipal Trial court, Daraga, Albay, dated 29 January 2015], the Supreme Court lifted the prohibition on the

f)

prescribing the basic curricula for the course of study aligned to the requirements for admission to the Bar, law practice and social consciousness;

g) establishing a law practice internship as a requirement for taking the Bar which a law student shall undergo PAGE 5 OF 85

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with any duly accredited private or public law office or firm or legal assistance group anytime during the law course for a specific period that the Board may decide, but not to exceed a total of twelve (12) months. For this purpose, the Board shall prescribe the necessary guidelines for such accreditation and the specifications of such internship which shall include the actual work of a new member of the Bar; and

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examinee. Examinees shall answer the questions personally without help from anyone. Upon verified application made by an examinee stating that his penmanship is so poor that it will be difficult to read his answers without much loss of time, the Supreme Court may allow such examinee to use a typewriter in answering the questions. Only noiseless typewriters shall be allowed to be used. The committee of bar examines shall take such precautions as are necessary to prevent the substitution of papers or commission of other frauds. Examinees shall not place their names on the examination papers. No oral examination shall be given [Sec. 10, Rule 138, RoC].

h) adopting a system of continuing legal education. The LEB promulgated LEB Memorandum Order No 1, Series of 2011 to set forth the policies and standards of legal education and manual of regulations for law schools.[N.B. Outside of the Bar Coverage] In December 2016, LEB promulgated LEB Memorandum Order No. 7, Series of 2016 which required the Philippine Law School Admission Test (PhilSAT) as a pre-requisite for admission to the basic law courses leading either to a Bachelor of Laws or Juris Doctor degree beginning school year 2017-2018.

iv. When and where to take examinations Examination for admission to the bar of the Philippines shall take place annually in the City of Manila. They shall be held in 4 days to be designated by the chairman of the committee on bar examiners [Sec. 11, Rule 138, RoC].

B.6. BAR EXAMINATIONS I. When to file permit

First Day

All applicants for admission shall file with the clerk of the Supreme Court the evidence required under Sec. 2 at least 15 days before the beginning of the examination. If the applicant is not covered by Secs. and 4, they shall also file within the same period the affidavit and certificate required by Sec. 5 [Sec. 7, Rule 138, RoC]. ii. Notice Notice of applications for admission shall be published by the clerk of the Supreme Court in newspapers published in Filipino, English and Spanish, for at least 10 days before the beginning of the examination [Sec. 8, Rule 138, RoC]. iii. Conduct of examinations Persons taking the examination shall not bring papers, books or notes into the examination rooms. The questions shall be the same for all examinees and a copy thereof, in English or Spanish, shall be given to each

Second Day Third Day Fourth Day

Morning

Political and International Law

Afternoon

Labor and Social Legislation

Morning

Civil Law

Afternoon

Taxation

Morning

Mercantile Law

Afternoon

Criminal Law

Morning

Remedial law

Afternoon

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v. Passing average A candidate is deemed to have passed his examinations successfully if he obtained a general average of 75%in all subjects, without falling below 50%in any subject [Sec. 14, Rule 138, RoC]. The relative weights of the subjects used in determining the average are as follows:

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Subject

%

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they show to the satisfaction of the court that they have enrolled in and passed regular 4th year review classes as well as attended a prebar review course in a recognized law school for each examination [Sec. 16, Rule 138, RoC, as amended by B.M. 1161 (2004)].

Civil Law

15%

Labor and Social Legislation

10%

Mercantile Law

15%

Criminal Law

10%

Political and International Law

15%

ix. Disciplinary measures

Taxation

10%

Remedial Law

20%

No candidate shall endeavor to influence any member of the committee, and during examination, the candidates shall not communicate with each other nor shall they give or receive any assistance. Any violator shall be barred from the examination, and the same to count as a failure against him, and further disciplinary action may be taken in the discretion of the court [Sec. 13, Rule 138, RoC].

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5%

vi. Committee of Examiners Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court as chairman, and 8 members of the bar, who shall hold office for a period of one year. The names of the members of this committee shall be published in each volume of the official reports [Sec. 12, Rule 138, RoC].

x. Civil service eligibility Under RA 1080 (An Act Declaring the Bar and Board Examinations as Civil Service Examinations), as amended by RA 1844, the Bar examinations is declared as civil service examinations equivalent to:

Pursuant to B.M. 1161 (2004), 2 examiners are designated per bar subject.

(1) First grade regular examination for appointment to a position which requires proficiency in law; and

The Bar Confidant acts as a sort of liaison officer between the court and the Bar Chairman on the other hand, and the individual members of the committee on the other. He is at the same time a deputy clerk of court.

(2) Second grade regular examination for appointment to a position which does not require proficiency in law.

C. APPEARANCE OF NON-LAWYERS General rule: Only members of the bar are entitled to practice law.

vii. Results Not later than February 15th after the examination, or as soon thereafter as may be practicable, the committee shall file its report on the result of such examination. The examination papers and notes of the committee shall be filed with the clerk and may there be examined by the parties in interest, after the court has approved the report [Sec. 15, Rule 138, RoC].

Exceptions: The following are also allowed in exceptional circumstances: (1) Law students; (2) By an agent/friend; (3) By the litigant himself. C.1. LAW STUDENT PRACTICE A law student who has successfully completed 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or

viii. Flunkers Candidates who have failed the bar examinations for 3 times shall be disqualified from taking another examination provided that they may take a 4th and 5th examination if PAGE 7 OF 85

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administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school [Sec. 1, Rule 138-A, RoC].

However, the Supreme Court, in the exercise of its judicial power, can validly authorize a layman to represent a litigant in court [Agpalo (2004)].

The appearance of the law student shall be under the direct supervision and control of a member of the IBP duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic [Sec. 2, Rule 138-A, RoC].

A non-lawyer conducting his own litigation is bound by the same rules in conducting the trial of his case. He cannot, after judgment, claim that he was not properly represented [Agpalo (2004)].

The Rules safeguarding privileged communications between attorney and client shall apply [Sec. 3, Rule 138-A, RoC].

C.3. NON-LAWYERS IN ADMINISTRATIVE TRIBUNALS

The law student shall comply with the standards of professional conduct governing members of the bar. Failure of an attorney to provide adequate supervision of student practice may be a ground for disciplinary action [Sec. 4, Rule 138-A, RoC].

There are laws which allow representation of another by non-lawyers before such bodies.

Sec. 34, Rule 138, RoC is clear that appearance before the inferior courts by a non-lawyer is allowed, irrespective of whether or not he is a law student. Thus, a law student may appear under the circumstances of Sec. 38, as an agent or a friend of a party litigant, without complying with the requirements of Rule 138-A, e.g., supervision of a lawyer [Cruz v. Mina, G.R. 154207 (2007)].

(2) The 2011 NLRC Rule of Procedure, promulgated pursuant to Art 225(a), Labor Code, allows (a) non-lawyers, who are not necessarily a party to the case, to represent a union or members thereof, (b) non-lawyers who are duly-accredited members of any legal aid office recognized by the Department of Justice or IBP, and (c) non-lawyer owners of establishments, to appear before it.

C.2. NON-LAWYERS IN COURTS

(2) Under Sec. 9, Act 2259 (Cadastral Act), a claimant may appear by himself, or by some person in his behalf, before a cadastral court.

(1) Art. 222, Labor Code allows non-lawyers to appear before the NLRC or any Labor Arbiter if (a) they represent themselves, or (b) they represent their organizations members

In the court of a municipality a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar [Sec 34, Rule 138].

(3) Under Sec. 50, RA 6657 (Comprehensive Agrarian Reform Law), as amended by RA 9700, responsible farmer leaders shall be allowed to represent themselves, their fellow farmers, or their organizations in any proceedings before the DAR: Provided, however, That when there are two or more representatives for any individual or group, the representatives should choose only one among themselves to represent such party or group before any DAR proceedings

Public policy demands that legal work in representation of parties should be entrusted only to those possessing tested qualifications [PAFLU v. Binalbagan, G.R. No. L-23959 (1971)].

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the practice of law, the following limitations must be observed:

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Sec. 34, Rule 138, RoC does not distinguish between civil and criminal cases. However, in criminal cases, the rule is qualified:

(1) The non-lawyer should confine his work to non-adversary contentions and should not undertake purely legal work (i.e., examination of witness, presentation of evidence);

(1) Under Sec. 1(c), Rule 115, RoC, the accused may defend himself in person “when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.”

(2) The services should not be habitual;

(2) Under Sec. 7, Rule 116, RoC, in determining whether a counsel de oficio should be appointed, or, for that matter, whether a counsel de parte should be required (conversely, whether the accused should be allowed to defend himself in person), the gravity of the offense and the difficulty of the questions that may arise should be considered.

(3) Attorney’s fees should not be charged [Agpalo (2004)]. C.4. PROCEEDINGS WHERE LAWYERS ARE PROHIBITED FROM APPEARING (1) In small claims cases, no attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant. If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter's consent [Sec. 17, Rules of Procedure in Small Claims Cases].

While the right to be represented by counsel is immutable, the option to secure the services of counsel de parte is not absolute. The court may restrict the accused’s option to retain a counsel de parte if: (1) He insists on an attorney he cannot afford; (2) He chose a person not a member of the bar;

(2) In all katarungang pambarangay proceedings, the parties must appear in person without the assistance of the counsel or representative, except for minors and incompetents who may be assisted by their next of kin who are not lawyers [Sec 415, RA 7160 (Local Government Code)].

(3) The attorney declines for a valid reason (e.g., conflict of interest) [People v. Serzo, G.R. No. 118435 (1997)]. C.6. AGENT OR FRIEND The agent or friend is not engaged in the practice of law, since there is no habituality in the activity and no attorney-client relationship exists. Pursuant to Sec. 34, Rule 138, RoC, he is only permitted to appear in the municipal trial court.

C.5. SELF-REPRESENTATION Pursuant to Sec. 34, Rule 138, RoC, in any court, a party may conduct his litigation in person. An attorney who is otherwise disqualified to practice law, or has been disbarred or suspended from practice, can validly prosecute or defend his own litigation, he having as much right as that of a layman [Danforth v. Egan, 119 N.W. 1021 (1909)].

In criminal cases, in localities where members of the bar are not available, the court may appoint any person (i.e., non-lawyer), who is a resident of the province and of good repute for probity and ability to defend the accused, in lieu of a counsel de oficio [Sec. 7, Rule 116, RoC]. In relation to Sec. 34, Rule 138, this is only allowed in the municipal trial court.

When a person conducts his litigation in person, he is not engaged in the practice of law [Agpalo (2004)]. A juridical person may also appear through its non-lawyer agents or officers in the municipal trial court. PAGE 9 OF 85

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pending official transaction with their office.

D. SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY

These prohibitions shall continue to apply for a period of 1 year after resignation, retirement or separation from public office, except in case of the second.

D.1. LAWYERS WITHOUT AUTHORITY Under Sec. 27, Rule 138, RoC, corruptly or willfully appearing as an attorney for a party to a case without authority to do so is a ground for disbarment or suspension.

The 1 year prohibition also applies to practice of profession in connection with any matter before the office he used to be with.

D.2. PERSONS NOT LAWYERS For BOTH persons not lawyers and lawyers who appear without authority, the following may be availed of:

E.2. PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW OR WITH RESTRICTIONS E.2.A. Absolute prohibition (1) Judges and other officials or employees of superior courts as [Sec. 35, Rule 148, RoC];

(1) Petition for injunction; (2) Declaratory relief; (3) Contempt of court; (4) Disqualification disbarment;

and

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complaints

(2) Officials and employees of the Office of the Solicitor General [Sec. 35, Rule 148, RoC];

for

(5) Administrative complaint against the erring lawyer or government official;

(3) Government prosecutors [Lim-Santiago v. Sagucio, A.C. 6705 (2006)];

(6) Criminal complaint for estafa against the person who falsely represented himself as a lawyer to the damage of another.

(4) President, vice-president, cabinet members, their deputies and assistants [Sec. 15, Art. VII, 1987 Constitution]; (5) Chairmen and members of constitutional commissions [Sec. 2, Art. IX-A, 1987 Constitution];

E. PUBLIC OFFICIALS AND PRACTICE OF LAW

(6) Ombudsman and his deputies [par. 2, Sec. 8 (2), Art. X, 1987 Constitution];

E.1. PROHIBITION OR DISQUALIFICATION OF FORMER GOVERNMENT ATTORNEYS Under Sec. 7(b), RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees), public officials and employees during their incumbency shall not:

(7) All governors, city and municipal mayors [Sec. 90(a), RA 7160]; (8) Civil service officers or employees whose duties require them to devote their entire time at the disposal of the government [Catu v Rellosa, A.C. 5738 (2008)];

(1) Own, control, manage or accept employment as officer employee, consultant, counsel, broker, agent, trustee or nominee / in any private enterprise regulated, supervised or licensed by their office / unless expressly allowed by law;

(9) Those who, by special law, are prohibited from engaging in the practice of their legal profession. E.2.B. Relative prohibition (1) No senator or member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasijudicial and other administrative bodies [Sec. 14, Art. VI, 1987 Constitution]

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; (3) Recommend any person to any position in a private enterprise which has a regular or PAGE 10 OF 85

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a. The word “appearance” includes not only arguing a case before any such body, but also filing a pleading on behalf of a client [Ramos v Manalac, G.R. L-2610 (1951)].

LEGAL AND JUDICIAL ETHICS

F. LAWYERS AUTHORIZED REPRESENT THE GOVERNMENT

TO

Any official or other person appointed or designated in accordance with law to appear for the Government of the Philippines shall have all the rights of a duly authorized member of the bar to appear in any case in which said government has an interest direct or indirect [Sec. 33, Rule 138, RoC]

(2) Sanggunian members may practice law except during session hours and provided they shall not: a. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;

G. LAWYER’S OATH An applicant who has passed the required examination, or has been otherwise found to be entitled to admission to the bar, shall take and subscribe before the Supreme Court the corresponding oath of office [Sec. 17, Rule 138, RoC].

b. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;

The lawyer's oath is not a mere ceremony or formality for practicing law. Every lawyer should at all times weigh his actions according to the sworn promises he makes when taking the lawyer's oath. If all lawyers conducted themselves strictly according to the lawyer's oath and the Code of Professional Responsibility, the administration of justice will undoubtedly be faster, fairer and easier for everyone concerned [In re: Argosino, A.M. 712 (1997)].

c. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and d. Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the government [Sec. 90(b), RA 7160]. E.2.C. Special restrictions Under Sec. 1, RA 910, the pension of justices therein is provided with a condition that no retiring justice, during the time that he is receiving said pension shall:

I, ___________________, do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court;

(1) Appear as counsel before any court in any civil case wherein the Government or any subdivision or instrumentality thereof is the adverse party;

I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same;

(2) In any criminal case wherein and officer or employee of the government is accused of an offense committed in relation to his office; or

I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and

(3) Collect any fee for his appearance in any administrative proceedings to maintain an interest adverse to the Government, insular, provincial or municipal, or to any of its legally constituted officers.

I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. [Form 28] PAGE 11 OF 85

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II. Duties Responsibilities Lawyer

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that no person may be deprived of life or liberty, but by due process of law

and of a

CODE OF PROFESSIONAL RESPONSIBILITY (hereinafter CPR)

A. TO SOCIETY (CANONS 1-6)

Under the Sec. 20, Rule 138, RoC, it is the duty of an attorney:

A.1. RESPECT FOR LAW AND LEGAL PROCESSES

(1) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines;

Canon 1. A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal process.

(2) To observe and maintain the respect due to the courts of justice and judicial officers;

NOTE: Canon 1 is the 3rd top source of Questions on the Code of Professional Responsibility. It was asked 18 times in the last 20 years as of 2014 [Lex Pareto (2014 ed)]

(3) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law;

Freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice [Zaldivar v. Gonzales, G.R. Nos. 79690-707 and 80578 (1988)].

(4) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; (5) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client’s business except from him or with his knowledge and approval;

Pursuant to Zaldivar v. Gonzales, G.R. Nos. 79690-707 and 80578 (1988)], the responsibility of a ‘public’ lawyer (such as Special Prosecutor), who owes duties of fidelity and respect to the Republic and to the Supreme Court as the embodiment and the repository of the judicial power in the government of the Republic, to uphold the dignity and authority of the Supreme Court and not to promote distrust in the administration of justice is heavier than that of a private practicing lawyer [Zaldivar v.

(6) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charge; (7) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause, from any corrupt motive or interest;

Gonzales, G.R. Nos. 79690-707 and 80578

(8) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;

(1988)].

Rule 1.01. A lawyer shall not engage in

(9) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end

unlawful, dishonest, immoral or deceitful conduct. UNLAWFUL CONDUCT PAGE 12 OF 85

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An unlawful conduct is act or omission which is against the law. Dishonesty involves lying or cheatsng [Agpalo (2004)]

(5) The issuance of checks without sufficient funds to cover the same. [Aca v. Salvado, A.C. No. 10952, (2016)]

IMMORAL CONDUCT AND GROSSLY IMMORAL CONDUCT DISTINGUISHED

NOT GROSSLY IMMORAL

Immoral Conduct

Grossly Immoral Conduct

Acts that are willful, flagrant, or shameless, and that show a moral indifference to the opinion of the upright and respectable members of the community

When it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such scandalous or revolting circumstances as to shock the community’s sense of decency Penalty disbarment

(1) Mere intimacy between a man and a woman, both of whom possess no impediment to marry, voluntarily carried and devoid of deceit on the part of the respondent, even if a child was born out of wedlock of such relationship; it may suggest a doubtful moral character but not grossly immoral [Figueroa v. Barranco, SBC Case No. 519 (1997)] (2) Stealing a kiss from a client [Advincula v. Macabata, A.C. No. 7204 (2007)] (3) Making sexual advances towards a client, but stopping right after the client refused such advances [Roa v Moreno, A.C. 8382 (2010)]. A lawyer may not be disciplined for failure to pay her obligation [Toledo v. Abalos, 315 SCRA 419 (1999)], but unwarranted obstinacy in evading the payment of a debt has been considered as a gross misconduct. [Constantino v. Saludares, 228 SCRA 233 (1993)].

of

[Perez v. Catindig, A.C. No. 5816 (2015) GROSSLY IMMORAL ACTS (1) Wanton disregard for the sanctity of marriage as shown when the lawyer pursued a married woman and thereafter cohabited with her [Guevarra v. Eala, A.C. No. 7136 (2007)]

MORAL TURPITUDE Moral turpitude includes everything which is done contrary to justice, honesty, modesty, or good morals. It involves an act of baseness, vileness, or depravity in the private duties which a man owed his fellowmen, or to society in general [Barrios v. Martinez, A.C. No. 4585 (2004)].

(2) Rape of a neighbor’s wife, which constitutes serious moral depravity, even if his guilt was not proved beyond reasonable doubt in the criminal prosecution for rape [Calub v. Suller, A.C. No. 1474 (2000)]

Murder, estafa, rape, violation of Batas Pambansa Blg. 22 (Bouncing Checks Law), bribery, bigamy, adultery, seduction, abduction, concubinage and smuggling are considered crimes involving moral turpitude.

(3) Obtaining money from a client, without rendering proper legal services, and appropriating the proceeds of the insurance policies of the client’s deceased husband [Freeman v. Zenaida, A.C. 6246 (2011)]

Issuance of bouncing checks reflects on the lawyer’s moral character and he may be disciplined. [Lex Pareto, Bar 2001, 2002] A lawyer is obligated to promote respect for legal processes. This includes order of the

(4) Falsifying documents [Cobalt Resources, Inc. v Aguardo, A.C. 10781, (2016)] PAGE 13 OF 85

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commission on Bar Discipline of the IBP. [Lex Pareto, Bar 2002]

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Supports perjury, the defrauding of innocent persons by judgments, upon manufactured causes of actions and the defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedure.

Rule 1.02. A lawyer shall not counsel or abet

activities aimed at defiance of the law or at lessening confidence in the legal profession.

A lawyer’s conduct of vindictiveness is a decidedly undesirable trait especially when one resorts to using the court not to secure justice but merely to exact revenge warrants his dismissal from the judiciary. [Saburnido v. Madrono, A.C. No. 4497 (2001)]

The promotion of organizations, with knowledge of their objectives, for the purpose of violating or evading the laws constitutes to malpractice of gross misconduct in his office [In re: Terrell, G.R. No. 1203 (1903)]. A lawyer should advise his client to uphold the law, not to violate or disobey it. Conversely, he should not recommend to his client any recourse or remedy that is contrary to law, public policy, public order, and public morals [Coronel v. Cunanan, A.C. 6738 (2015)].

AMBULANCE CHASING AND BARRATRY DISTINGUISHED [Lex Pareto (2014)]

Ambulance Chasing

Rule 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or delay any man’s cause.

Barratry

Refers to personal injury

Refers to any action

Refers to cases brought before judicial bodies

Refers to suits before judicial or non-judicial bodies

Rule 1.04. A lawyer shall encourage his

BARRATRY OR “MAINTENANCE”

clients to avoid, end or settle a controversy if it will admit of a fair settlement.

The offense of inciting or stirring up quarrels, litigation or groundless lawsuits, either at law or otherwise [Bouvier]

The function of a lawyer is not only to conduct litigation but to avoid it where possible, by advising settlement or withholding suit. He must act as mediator for compromise rather than an instigator and conflict [Agpalo (2004)].

Other prohibited acts include: (1) Volunteering advice to bring lawsuits, except where ties of blood, relationship or trust make it a duty to do so

It is the duty of a counsel to advise his client, ordinarily a layman to the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he finds that his client's cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his client’s propensity to litigate. A lawyer's oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable [Castañeda v. Ago, G.R. No. L28546 (1975)]

(2) Hunting up defects in titles or other causes of action in order to be employed to bring suit or breed litigation (3) [Agpalo (2004)] AMBULANCE-CHASING Unethical practice of inducing personal injury victims to bring suits. The practice of lawyers in frequenting hospitals and homes of the injured to convince them to go to court [Lex Pareto (2014)] Accident-site solicitation of any kind of legal business by laymen employed by an attorney for the purpose or by the attorney himself. PAGE 14 OF 85

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A.2. EFFICIENT, SERVICES

LEGAL ETHICS

CONVENIENT

LEGAL AND JUDICIAL ETHICS

Rule 2.02. In such cases, even if the lawyer

LEGAL

does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter’s rights.

Canon 2. A lawyer shall make his legal

services available in an efficient and convenient manner compatible with the independence, integrity and effectiveness of the profession.

Advice may be on what preliminary steps to take until the client has secured the services of counsel. But he shall refrain from giving legal advice if the reason for not accepting the case is that there involves a conflict of interest between him and a prospective client or between a present client and a prospective client. [Agpalo (2004)]

NOTE: Asked 4 times in the last 20 years as of 2014 [Lex Pareto (2014 ed)] Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. [Sec. 11, Art. III, 1987 Constitution]

Rule 2.03. A lawyer shall not do or permit to

A person in need of legal services should be able to find a lawyer who is qualified to provide them. It is the responsibility of the bar to make such services available [Agpalo (2004)].

be done any act designed to primarily solicit legal business.

A well-known lawyer has been engaged to run a program in which he encourages indigent party litigants to consult him free of charge about their legal problems over a radio and television network. Has he violated any ethical rules? – YES, as it involves indirect advertising and solicitation and is likewise violative of the confidentiality of lawyer-client relationship. His act may also be considered as a form of self-praise hence subject to discipline [In re: Tagorda, G.R. No. 32329, (1929), cited in Lex Pareto (2014); Linsangan v. Tolentino, A.C. 6672(2009)]

Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.

Membership in the bar is a privilege burdened with conditions. It could be that for some lawyers, especially the neophytes in the profession, being appointed counsel de oficio is an irksome chore. For those holding such belief, it may come as a surprise that counsel of repute and of eminence welcome such an opportunity. It makes even more manifest that law is indeed a profession dedicated to the ideal of service and not a mere trade. It is understandable then why a high degree of fidelity to duty is required of one so designated. [Ledesma v. Climaco, G.R. No. L-23815 (1974)]

Law is not a business but a profession. Unlike a businessman, the lawyer has: (1) Relation to the administration of justice involving sincerity, integrity and reliability as an officer of the court; (2) Duty of public service; (3) Relation to clients with the highest degree of fiduciary;

Legal aid is not a matter of charity. It is a means for the correction of social imbalance that may and often do lead to injustice, for which reason it is a public responsibility of the bar [Sec. 1, Art. 1, IBP Handbook, Guidelines Governing the Establishment and Operation of the Legal Aid Office].

(4) Relation to colleagues at the bar characterized by candor, fairness and unwillingness to resort to business methods of advertising and encroachment on their practice, or dealing directly with their clients [Agpalo (2004)] Thus, the practice of soliciting cases at law for the purpose of gain, either personally or PAGE 15 OF 85

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through paid agents or brokers, constitutes malpractice [Sec. 27, Rule 138, RoC].

LEGAL AND JUDICIAL ETHICS

The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a wellmerited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct [Canon 27, Canons of Professional Ethics; In re: Tagorda, supra].Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

A lawyer is not prohibited from engaging in business or other lawful occupation. Impropriety arises, though, when the business is of such a nature or is conducted in such a manner as to be inconsistent with the lawyer’s duties as a member of the bar. This inconsistency arises when the business is one that can readily lend itself to the procurement of professional employment for the lawyer; or that can be used as a cloak for indirect solicitation on the lawyer’s behalf; or is of a nature that, if handled by a lawyer, would be regarded as the practice of law [Villatuya v. Tabalingcos, A.C. 6622 (2012)

ALLOWABLE ADVERTISEMENT (1) Ordinary simple professional card;

Rule 2.04. A lawyer shall not charge rates

(2) Publication in reputable law list with brief biographical and other informative data which may include:

lower than those customarily prescribed unless the circumstances so warrant.

(a) Name;

Ratio: the practice of law is profession and not a trade. It is improper to lower your legal rates just because another lawyer has offered a lower legal fee. [Lex Pareto (2014)]

(b) Associates; (c) Address; (d) Phone numbers;

This rule prohibits the competition in the matter of charging professional fees for the purposed of attracting clients in favor of the lawyer who offers lower rates. The rule does not prohibit a lawyer from charging a reduced fee or none at all to an indigent or to a person who would have difficulty paying the fee usually charged for such services [Agpalo (2004)]

(e) Branches of law practiced; (f) Birthday; (g) Day admitted to the bar; (h) Schools and dates attended; (i) Degrees and distinctions; (j) Public or quasi-public offices; (k) Posts of honor; (l) Legal authorships;

A.3. TRUE, HONEST, FAIR, DIGNIFIED & OBJECTIVE INFORMATION ON LEGAL SERVICES Canon 3. A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts.

(m) Teaching positions; (n) Associations; (o) Legal fraternities and societies; (p) References and regularly represented clients must be published for that purpose [Ulep v. The Legal Clinic, Inc., B.M. No. 553 (1993)];

NOTE: Canon 3 is 5th top source of Questions on CPR. Asked 12 times in the last 20 years as of 2014 [Lex Pareto (2014)]

(3) Publication of simple announcement of opening of law firm, change of firm; (4) Listing in telephone directory but not under designation of special branch of law; PAGE 16 OF 85

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(5) If acting as an associate (specializing in a branch of law), may publish a brief and dignified announcement to lawyers (law list, law journal);

layman could distinguish between the two functions. The lawyer must make it clear to his client whether he is acting as a lawyer or in another capacity.

(6) If in media, those acts incidental to his practice and not of his own initiative; (7)

LEGAL AND JUDICIAL ETHICS

Writing legal articles;

Rule 3.02. In the choice of a firm name,

(8) Activity of an association for the purpose of legal representation.

no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased.

The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published primarily for other purposes. PROHIBITED ADVERTISEMENTS

The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased [Agpalo (2004)].

[Sec. 27, Canon of Professional Ethics] (1) Through touters of any kind whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills;

Ratio: All partners by their joint efforts over a period of years contributed to the goodwill attached to the firm name, and the removal of the deceased partner’s name disturbs the client goodwill built through the years.

(2) Offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer;

Firms may not use misleading names showing association with other firms to purport legal services of highest quality and ties with multinational business enterprise especially when such firm attached as an associate cannot legally practice law in the Philippines [Dacanay v. Baker and McKenzie, A.C. 2131 (1985)].

(3) Furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interests involved, the importance of lawyer’s position, and all other like self-laudation. A lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program in order to solicit legal business [Khan v. Simbillo, A.C. 5299 (2003)].

Rule 3.03. Where a partner accepts public

office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice law concurrently.

It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. The law is a profession not a business. Solicitation of cases by himself or through others is unprofessional and lowers the standards of the legal profession. [In re:

Purpose: To prevent the law firm from using his name to attract legal business and to avoid suspicion of undue influence.

Tagorda, supra].

In the last analysis, where to draw the line is a question of good faith and good taste.

A civil service officer or employee whose duty or responsibility does not require his entire time to be at the disposal of the government may not engage in the private practice of law without the written permit from the head of the department concerned [Agpalo (2004)].

ENTERING INTO OTHER BUSINESSES For it to constitute as inconsistent with the lawyer’s profession, it is advisable that they be entirely separate and apart such that a PAGE 17 OF 85

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It is unlawful for a public official or employee to, among others, engage in the private practice of their profession, unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with official functions [Samonte v. Gatdula, A.M. No. P-99-1292 (1999)].

LEGAL AND JUDICIAL ETHICS

meting an appropriate disciplinary measure, even a penalty to the one liable. [Cruz v. Salva, G.R. No. L-12871 (1959)] A.4 PARTICIPATION IN THE IMPROVEMENT AND REFORMS IN THE LEGAL SYSTEM Canon 4. A lawyer shall participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice.

If the unauthorized practice on the part of a person who assumes to be an attorney causes damage to a party, the former may be held liable for estafa [Agpalo (2004)] ABSOLUTE AND RELATIVE PROHIBITION OF PUBLIC OFFICIALS FROM PRACTICE OF LAW:

NOTE: Asked 2 times in the last 20 years as of 2014 [Lex Pareto (2014 ed)] This is a duty that flows from the lawyer’s sense of public responsibility [Agpalo (2004)].

When any of those absolutely prohibited officials is appointed/elected/qualified, he ceases, as a general rule, to engage in the private practice of law and his right to practice is suspended during his tenure in office.

EXAMPLES (1) Presenting position papers or resolutions for the introduction of pertinent bills in Congress;

Rule 3.04. A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.

(2) Submitting petitions to the Supreme Court for the amendment of the RoC. The Misamis Oriental Chapter of the IBP has been commended by the Supreme Court when it promulgated a resolution wherein it requested the IBP’s National Committee on Legal Aid to ask for the exemption from the payment of filing, docket and other fees of clients of the legal aid offices in the various IBP chapters [Re: Request of NCLA to Exempt

Purpose: To prevent some lawyers from gaining an unfair advantage over others through the use of gimmickry, press agentry or other artificial means. This rule prohibits making indirect publicity gimmick, such as furnishing or inspiring newspaper comments, procuring his photograph to be published in connection with cases which he is handling, making a courtroom scene to attract the attention of newspapermen, or arranging for the purpose an interview with him by media people [Agpalo 2004].

Legal Aid Clients from Paying Filing, Docket and Other Fees (2009)].

A.5. PARTICIPATION IN LEGAL EDUCATION PROGRAM Canon 5. A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence.

It is bad enough to have such undue publicity when a criminal case is being investigated by the authorities, even when it is being tried in court; but when said publicity and sensationalism is allowed, even encouraged, when the case is on appeal and is pending consideration by this Tribunal, the whole thing becomes inexcusable, even abhorrent, and this Court, in the interest of justice, is constrained and called upon to put an end to it and a deterrent against its repetition by PAGE 18 OF 85

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B.M. 850, as amended

his MCLE compliance notwithstanding the several opportunities given him. Court orders are to be respected not because the judges who issue them should be respected, but because of the respect and consideration that should be extended to the judicial branch of the Government. Disrespect to judicial incumbents is disrespect to that branch the Government to which they belong, as well as to the State which has instituted the judicial system. [Rodriguez-Manahan v. Flores, A.C. No. 8954 (2013)]

(Dated Feb. 15, 2015. Effective Mar. 1, 2015) Re: Rules on Mandatory Continuing Legal Education for Active Members of the Integrated Bar of the Philippines xxx The Court Resolved to REQUIRE all members of the IBP to file a written entry of appearance indicating their MCLE exemption or compliance number for the current or immediately preceding compliance period and date of issuance thereof before appearing as counsel or engaging in oral argument in open court or before a quasi-judicial body. However, counsels who affixed their signatures in their pleadings and indicated their MCLE exemption or compliance number in their pleadings need not file a separate entry of appearance. Henceforth, all counsels, including partners of law firms whose names appear in the said pleadings, shall also indicate their MCLE exemption or compliance number.

A.6. APPLICABILITY TO GOVERNMENT LAWYERS Canon 6. These canons shall apply to lawyers in government service in the discharge of their official duties. NOTE: Asked 5 times in the last 20 years as of 2014 [Lex Pareto (2014 ed)] Where a lawyer’s misconduct as a government official is of such nature as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such grounds. Although the general rule is that a lawyer who holds a government office may not be disciplined as a member of the bar for infractions he committed as a government official, he may, however, be disciplined as a lawyer if his misconduct constitutes a violation of his oath a member of the legal profession [Ali v Butong, A.C. 4018 (2005)].

This resolution shall take effect on March 1, 2015 following its publication in a newspaper of general circulation." Pursuant to Supreme Court Resolution dated January 14, 2014, the phrase “failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records” in B.M. 1922 (2008) is repealed and amended to read, “failure to disclose the required information would subject the counsel to appropriate penalty and disciplinary action.” MANDATORY CONTINUING EDUCATION (MCLE) PROGRAM

LEGAL AND JUDICIAL ETHICS

A member of the bar who assumes public office does not shed his professional obligation. Lawyers in government are public servants who owe the utmost fidelity to the public service. A lawyer in public service is a keeper of public faith and is burdened with a high degree of social responsibility, perhaps higher than her brethren in private practice [Vitriolo v. Dasig, A.C. 4984 (2003)].

LEGAL

A program which requires lawyers to show proof of having undertaken improvement in their knowledge as a precondition for renewing their license to practice [Lex Pareto (2014)]

May a former government lawyer appear in a case against the government? – YES, he may appear in a case unless there is a specific ethical rule or provision of law which prohibits him from doing so. [Lex Pareto (2014)]

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When may a former government lawyer be prohibited from accepting a legal engagement? [Lex Pareto (2014)] a. A lawyer shall not after leaving the government service accept engagement or employment in connection with any matter in which he had intervened while in said service; b. Retired members of the judiciary receiving pensions form the government should not practice law where the government is the adverse party or in a criminal case involving a government employee in the performance of his duties as such Sec. 4, RA 6713 provides the norms of conduct of public officials and employees.

Rule 6.01. The primary duty of a lawyer

engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action.

A prosecuting attorney, by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. This is not to discount the possibility of the commission of abuses on the part of the prosecutor. But we must have to recognize that a prosecuting attorney should not be unduly compelled to work against his conviction. In case of doubt, we should give him the benefit thereof. A contrary rule may result in our courts being unnecessarily swamped with unmeritorious cases. Worse still, a criminal suspect's right to due process the sporting idea of fair play - may be transgressed. So it is, that in People vs. Sope, this Court made the pronouncement that "[i]t is very logical that the prosecuting attorney, being the one charged with the prosecution of offenses, should determine the information to be filed and cannot be controlled by the offended party." [People v. Pineda, G.R. No. L-26222 (1967)]

Rule 6.02. A lawyer in the government

service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

A public prosecutor is a quasi-judicial officer with the two-fold aim which is that guilt shall not escape or innocence suffers. He should not hesitate to recommend to the court the acquittal of an accused if the evidence in his possession shows that the accused is innocent [Agpalo (2004)]. In criminal cases, a public prosecutor should be present for the following reasons: [Lex Pareto (2014)] 1.

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To protect the interest of the State (As the criminal case is in reality a crime against the State)

2. To see to it that justice is done (Rule 6.01) Naturally, the private prosecutor is interested only to convict the accused. However, the primary duty of the public prosecutor is not to convict, but to see that justice is done.

A lawyer should not use his position to feather his private law practice and accept any private legal business that may conflict with his official duties. In case of conflict, he should terminate his professional relationship, and his official duties must prevail [Agpalo (2004)]. Government employees are expected to devote themselves completely to public service. For this reason, the private practice of profession is prohibited [Ramos v. Imbang, A.C. 6788 (2007)]. It bears stressing also that government lawyers who are public servants owe fidelity to the public service, a public trust. As such, they should be more sensitive to their professional obligations as their disreputable conduct is more likely to be magnified in the public eye [Huyssen v. Gutierrez, A.C. 6707 (2006)].

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prohibitions continue to apply for a period of one year after the public official or employee’s resignation, retirement, or separation from public office, except for the private practice of profession under subsection (b)(2), which can already be undertaken even within the oneyear prohibition period. As an exception to this exception, the one-year prohibited period applies with respect to any matter before the office the public officer or employee used to work with. [Query of Karen Silverio-Buffe, A.M. 08-6-352-RTC (2009)].

Rule 6.03. A lawyer shall not, after leaving

government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. HOW GOVERNMENT LAWYERS MAY LEAVE GOVERNMENT SERVICE: (1) Retirement; (2) Resignation;

B. TO THE (CANONS 7-9)

(3) Expiration of the term of office; (4) Abandonment; (5) Dismissal

LEGAL

PROFESSION

B.1. IBP i. Bar Integration

General rule: Practice of profession is allowed immediately after leaving public service.

The Supreme Court may adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall see fit in order to raise the standards of the legal profession improve the administration of justice and enable the bar to discharge its public responsibility more effectively. [Sec. 1, RA 6397 (An Act Providing for the Integration of the Philippine Bar, and Appropriating Funds Therefor.].

Exceptions: The lawyer cannot practice as to matters with which he had connection during his term. This prohibition lasts: (1) For one year, if he had not intervened; (2) Permanently, if he had intervened. The “matter” contemplated are those that are adverse-interest conflicts (substantial relatedness and adversity between the government matter and the new client’s matter in interest) and congruent-interest representation conflicts (prohibits lawyers from representing a private practice client even if the interests of the former government client and the new client are entirely parallel). “Intervention” should be significant and substantial which can or have affected the interest of others (i.e. an act of a person has the power to influence the subject proceedings) [PCGG v. Sandiganbayan, G.R. Nos. 151809-12 (2005)].

Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar Examinations. All that integration actually does is to provide an official national organization for the welldefined but unorganized and uncohesive group of which every lawyer is already a member [In the matter of the IBP, 49 SCRA 22 (1973)]. The IBP is essentially a semi-governmental entity, a private organization endowed with certain governmental attributes. While it is composed of lawyers who are private individuals, the IBP exists to perform certain vital public functions and to assist the government particularly in the improvement of the administration of justice, the upgrading of the standards of the legal profession, and its proper regulation.

Sec. 7 of RA 6713 generally provides for the prohibited acts and transactions of public officials and employees. Sec. 7(b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions. The

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choice of the IBP Officers. The fundamental assumption is that the officers would be chosen on the basis of professional merit and willingness and ability to serve. The unseemly ardor with which the candidates pursued the presidency of the association detracted from the dignity of the legal profession. The spectacle of lawyers bribing or being bribed to vote did not uphold the honor of the profession nor elevate it in the public’s esteem [In re: 1989 Elections of the IBP, A.M. 491 (1989)].

LEGAL AND JUDICIAL ETHICS

iv. Membership and Dues

Sec. 9, Rule 139-A, RoC. Membership Dues – Every member of the IBP shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court.A fixed sum equivalent to 10% of the collection from each Chapter shall be set aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members thereof.

Sec. 10, Rule 139-A, RoC. Effect of nonpayment of dues -- Subject to the provisions

ii. General Objectives of the IBP (1) To elevate the standards of the legal profession;

of Sec. 12 of this Rule, default in the payment of annual dues for 6 months shall warrant suspension of membership in the IBP, and default in such payment for 1 year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys.

(2) To improve the administration of justice;
 (3) To enable the bar to discharge its public responsibility more effectively [Sec. 2, IBP By-Laws]. iii. Purposes of the IBP (1) To assist in the administration of justice; (2) To foster and maintain on the part of its members high ideals of integrity, learning, professional competence, public service and conduct; (3) To safeguard the professional interest of its members; (4) To cultivate among its members a spirit of cordiality and brotherhood; (5) To provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the bar to the bench and to the public, and publish information relating thereto; (6) To encourage and foster legal education; (7) To promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon. [Sec. 2, IBP By-Laws] [Note: Purposes of the IBP is one of the favorite questions asked in the Bar. – 2016 Faculty Ed.]

A membership fee in the IBP is an exaction for regulation, while the purpose of a tax is revenue. If the Court has inherent power to regulate the bar, it follows that as an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to push through an Integrated Bar program without means to defray the concomitant expenses. The doctrine of implied powers necessarily includes the power to impose such an exaction [In the matter of the IBP, supra.]. A lawyer can engage in the practice of law only by paying his dues, and it does not matter if his practice is “limited.” The exemption granted to senior citizens in RA 7432 (Seniors Citizen Act) does not include payment or membership or association dues [Santos v. Llamas, A.C. 4749 (2000)]. In a case involving a Filipino lawyer staying abroad, the Supreme Court said that there is nothing in the law or rules, which allows his exemption from payment of membership dues. At most, he could have informed the Secretary of the IBP of his intention to stay abroad before he left. In such case, his membership in the IBP could have been terminated and his obligation to pay dues discontinued [Letter of Atty. Arevalo, B.M. 1370 (2005)].

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B.2. UPHOLDING THE DIGNITY & INTEGRITY OF THE PROFESSION Canon 7. A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the Integrated Bar. The bar has to maintain a high standard of legal proficiency, honesty, and fair dealing to be an effective instrument in the proper administration of justice. In order to do so, it is necessary that every lawyer should strive to uphold the honor and dignity of the legal profession and to improve not only the law, but the the administration of justice as well [Agpalo (2004)]

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candidate has examinations;

taken

the

bar

(3) Revocation of license to practice, if the concealment was discovered after he has taken his lawyer’s oath [In re: Petition to

Take the Lawyer’s Oath, Caesar Z. Distrito, petitioner, B.M. 1209 (2003)].

If what the applicant concealed is a crime which does not involve moral turpitude, it is the fact of concealment and not the commission of the crime itself that makes him morally unfit to become a lawyer. It should be noted that the application was made under oath, which he lightly took when he made the concealment [In re: Petition to Take the Lawyer’s Oath, Caesar Z. Distrito, petitioner, supra].

A lawyer should actively support the activities of the IBP and not limit himself to paying dues [Agpalo (2004)].

Rule 7.02. A lawyer shall not support the

application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute.

Rule 7.01. A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar.

A lawyer must be a disciple of truth. While a lawyer has the solemn duty to defend his client’s rights and is expected to display the utmost zeal in defense of his client’s cause, his conduct must never be at the expense of truth [Young v. Batuegas, A.C. 5379 (2003)]. A student aspiring to be a lawyer must study and observe the duties and responsibilities of a lawyer. He cannot claim that the CPR does not apply to him [Agpalo (2004)].

A lawyer should volunteer information or cooperate in any investigation concerning alleged anomaly in the bar examination so that those candidates who failed therein can be ferreted out and those lawyers responsible therefor can be disbarred [In re: Parazo, G.R. 082027 (1948)]. A lawyer should not readily execute an affidavit of good moral character in favor of an applicant who has not live up to the standard set by law [Agpalo (2004)].

Rule 7.03. A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

PENALTIES (1) Disqualification of the applicant from taking the bar, if the concealment is discovered before he takes the bar examinations; (2) Prohibition from taking the lawyer’s oath, if the concealment is discovered after the

General rule: The Court will not assume jurisdiction to discipline one of its members for

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misconduct alleged to be committed in his private capacity Exception: An attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which show him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him [Piatt v Abordo, 58 Phil 350 (1933)]. It is not necessary for a lawyer to be convicted for an offense before a lawyer can be disciplined for gross immorality. It is enough that the act charged constitutes a crime [Agpalo (2004)]. There is no distinction as to whether the transgression is committed in the lawyer’s professional capacity or in his private life or in his private transaction because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another [Funa]. In general, all crimes of which fraud and deceit is an element or those which are inherently contrary to rules of right, conduct, honesty or morality in a civilized community, involve moral turpitude. [Agpalo (2004)] SEE ALSO: Rule 1.01 B.3. COURTESY, FAIRNESS & CANDOR TOWARDS PROFESSIONAL COLLEAGUES

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(4) Proceed to negotiate with the client of another lawyer to waive all kinds of claim when the latter is still handling the civil case [Camacho v. Pangulayan, A.C. 4807 (2000)]. (5) Steal another lawyer’s client; (6) Induce a client to retain him by promise of better service, good result or reduced fees for 
 his services; (7) Disparage another lawyer, make comparisons or publicize his talent as a means to further his law practice; (8) In the absence of the adverse party’s counsel, interview the adverse party and question him as to the facts of the case even if the adverse party was willing; (9) Sanction the attempt of his client to settle a litigated matter with the adverse party without the consent nor knowledge of the latter’s counsel. Lawyers should treat their opposing counsels and other lawyers with courtesy, dignity and civility. Any undue ill feeling between clients should not influence counsels in their conduct and demeanor toward each other. Mutual bickering, unjustified recriminations and offensive behavior among lawyers not only detract from the dignity of the legal profession, but also constitute highly unprofessional conduct subject to disciplinary action [Reyes v. Chiong, A.C. 5148 (2003)].

Rule 8.01. A lawyer shall not, in his

professional dealings, use language, which is abusive, offensive or otherwise improper.

Canon 8. A lawyer shall conduct himself

with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel. LAWYER DON’Ts: (1) Take advantage of the excusable unpreparedness or absence of counsel during the trial of a case; (2) Make use, to his or to his client’s benefit, the secrets of the adverse party acquired through design or inadvertence; (3) Criticize or impute ill motive to the lawyer who accepts what in his opinion is a weak case;

A lawyer should treat the opposing counsel and his brethren in the law profession with courtesy, dignity, and civility. They may do as adversaries do in law: strive mightily but eat and drink as friends [Valencia v. Cabanting, A.M. 1302 (1991)]. The Court recognizes the adversarial nature of our legal system which has necessitated lawyers to use strong language in advancement of the interest of the clients. However, as members of a noble profession, lawyers are always impressed with the duty to

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represent their client’s cause, or as in this case, to represent a personal matter in court, with courage and zeal but that should not be used as a license for the use of offensive and abusive language. In maintaining the integrity and dignity of the legal profession, a lawyer’s language – spoken or in his pleadings – must be dignified. [Sanchez v. Aguilos, A.C. 10543 (2016)].

(a) Provided the other lawyer has been given notice of termination of service, lest it amounts to an improper encroachment upon the professional employment of the original counsel [Laput v. Remotigue, A.M. 219 (1962)];

or

(b) In the absence of a notice of termination from the client, provided he has obtained the conformity of the counsel whom he would substitute; or

IMPROPER LANGUAGE (1) Behaving without due regard for the trial court and the opposing counsel and threatening the court that he would file a petition for certiorari [Bugaring v. Espanol, G.R. No. 133090 (2001)]; (2) Calling an adverse counsel as “bobo” or using the word “ay que bobo” in reference to the manner of offering evidence [Castillo v. Padilla, A.C. 2339 (1984)]. (3) Stating that “justice is blind and also “deaf and dumb”” [In Re: Almacen, G.R. L-27654(1970)].

(c) In the absence of such conformity, a lawyer must at least give sufficient notice to original counsel so that original counsel has the opportunity to protect his claim against the client. (2) Give advice or assistance to any person who seeks relief against an unfaithful or neglectful lawyer; (3) Associate as a colleague in a case, provided he communicate with the original counsel before making an appearance as cocounsel: (a) Should the original lawyer object, he 
 should decline association but if the original lawyer is relieved, he may come into the case; or

(4) Stating that the demand from a former client’s counsel should be treated “as a mere scrap of paper or should have been addressed by her counsel… to the urinal project of the MMDA where it may service its rightful purpose [Sanchez v. Aguilos, supra.]. Lack or want of intention is no excuse for the disrespectful language employed. Counsel cannot escape responsibility by claiming that his words did not mean what any reader must have understood them as meaning [Rheem of the Philippines v Ferrer, G.R. L-22979 (1967)].

(b) Should it be impracticable for him, whose judgment has been overruled by his co- counsel to cooperate effectively, he should ask client to relieve him. B.4. NO ASSISTANCE IN UNAUTHORIZED PRACTICE OF LAW

Canon 9. A lawyer shall not, directly or

Rule 8.02. A lawyer shall not, directly or

indirectly, assist in the unauthorized practice of law.

indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel.

Generally, to engage in the practice of law is to do any of those acts which are characteristic of the legal profession [Agpalo (2004)].

A LAWYER MAY: (1) Accept employment to handle a matter previously handled by another lawyer:

In Cayetano v. Monsod, the Court held that practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. To engage in the practice of law is to perform acts which are usually performed

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by members of the legal profession. Generally, to practice law is to render any kind of service which requires the use of legal knowledge or skill [Aguirre v. Rana, supra.].

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attorney and his client cannot arise if the attorney is employed by a corporation [Agpalo (2004)]. NOT ALLOWED:

3 principle types of professional activities:

(1) Automobile club that solicits membership by advertising that it offers free legal services of its legal department to members;

1. Legal advice and instructions to clients to inform them of their rights and obligations 2. Preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary laymen 3. Appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in the proper interpretation and enforcement of law [Agpalo (2004)]. EXAMPLES OF PRACTICE OF LAW (1) Legal advice and instructions to clients to inform them of their rights and obligations; (2) Preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary laymen; (3) Appearance for clients before public tribunals, whether, administrative, quasijudicial or legislative agency.

(2) Collection agency or credit exchange that exploits lawyer’s services; (3) Bank using lawyer’s name as director in advertising its services in drawing wills and other legal documents. Unauthorized practice of law applies to both non-lawyers and lawyers prohibited from the private practice of law. The purpose is to protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court [Phil. Assoc. of Free Labor Union v. Binalbagan Isabela Sugar Co., G.R. L-23959 (1971)]. NOTE: Exceptions under APPEARANCE OF NON-LAWYERS above

Rule 9.01. A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing.

ILLEGAL PRACTICE OF LAW EXAMPLES (1) Appearing as counsel even before taking lawyer’s oath [Aguirre v. Rana, B.M. 1036 (2003)]; (2) Using the title “Attorney” in his name even though he is a Shari’a lawyer [Alawi v. Alauya, A.M. SDC-97-2-P (1997)]. A corporation cannot engage in the practice law directly or indirectly. It may only hire inhouse lawyers to attend to its legal business. A corporation cannot employ a lawyer to appear for others for its benefit. A corporation cannot perform the conditions required membership to the bar. In addition, the confidential and trust relation between an

Ratio: The practice of law is limited only to individuals who have the necessary educational qualifications and good moral character. Moreover, an attorney-client relationship is a strictly personal one. Lawyers are selected on account of their special fitness through their learning or probity for the work at hand. ACTS THAT MAY ONLY BE DONE BY A LAWYER (1) The computation and determination of the period within which to appeal an adverse judgment [Eco v. Rodriguez, G.R. L-16731 (1960)];

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(2) The examination of witnesses or the presentation of evidence [Robinson v. Villafuerte, G.R. L-5346 (1911)]. MAY BE DELEGATED TO NON-LAWYERS: (1) The examination of case law; (2) Finding and interviewing witnesses; (3) Examining court records; (4) Delivering papers and similar matters [Agpalo [2004].

Rule 9.02. A lawyer shall not divide or

stipulate to divide a fee for legal services with persons not licensed to practice law, except:
 (a) Where there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; or

LEGAL AND JUDICIAL ETHICS

A contract between a lawyer and a layman granting the latter a percentage of the fees collected from clients secured by the layman and enjoining the lawyer not to deal directly with said clients is null and void, and the lawyer may be disciplined for unethical conduct [Tan Tek Beng v. David, A.C. 1261 (1983)]. While non-lawyers may appear before the NLRC or any labor arbiter under Art. 222, Labor Code, they are still not entitled to receive attorney’s fees.The statutory rule that an attorney shall be entitled to have and recover from his client a reasonable compensation or remuneration for the services they have rendered presupposes the existence of an attorney-client relationship.Such a relationship cannot exist when the client’s representative is a nonlawyer [Five J Taxi v. NLRC, G.R. 111474 (1994)].

C. TO THE COURTS (CANONS 10-13) C.1. CANDOR, FAIRNESS & GOOD FAITH TOWARDS THE COURTS

(b) Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or

Canon 10. A lawyer owes candor, fairness and good faith to the court.

(c) Where a lawyer or law firm includes non- lawyer employees in a retirement plan, even if the plan is based in whole or in part, on a profitable sharing arrangement. Ratio: Allowing non-lawyers to get attorney’s fees would confuse the public as to whom they should consult. It would leave the bar in a chaotic condition because non-lawyers are also not subject to disciplinary action. An agreement between a union lawyer and a layman president of the union to divide equally the attorney’s fees that may be awarded in a labor case violates this rule, and is illegal and immoral [Amalgamated Laborers Assn. v. CIR, G.R. L-23467 (1968)]. A donation by a lawyer to a labor union of part of his attorney’s fees taken from the proceeds of a judgment secured by him for the labor union is improper because it amounts to a rebate or commission [Halili v. CIR, G.R. L24864 (1965)]. PAGE 27 OF 85

A lawyer is, first and foremost, an officer of the court. Accordingly, should there be a conflict between his duty to his client and that to the court, he should resolve the conflict against the former and in favor of the latter, his primary responsibility being to uphold the cause of justice [Cobb Perez v. Lantin, G.R. L22320 (1968)]. Candor in all of the lawyer’s dealings is the very essence of honorable membership in the legal profession [Cuaresma v. Daquis, G.R. L35113 (1975)].

Rule 10.01. A lawyer shall not do any

falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the court to be misled by any artifice.

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A lawyer should not conceal the truth from the court, nor mislead the court in any manner no matter how demanding his duties to clients may be. His duties to his client should yield to his duty to deal candidly with the court. For no client is entitled to receive from the lawyer any service involving dishonesty to the courts [Comments of IBP Committee that drafted the Code, hereinafter, IBP Committee]. Some cases of Falsehood Committed by Lawyers: 1.

Falsely stating in a deed of sale that property is free from all liens and encumbrances [Sevilla v. Zoleta, 96 Phil 979 (1955)];

2. Falsifying a power of attorney to use in collecting the money due to the principal and appropriating the money for his own benefit [In Re: Rusiana, A.C. 270 (1959)]; 3. Denying having received the notice to file brief which is belied by the return card [Ragasajo v. IAC, G.R. L-69129 (1987)]; 4. Presenting falsified documents in court which he knows to be false [Bautista v. Gonzales, A.M. 1625 (1990)]; 5. Filing false charges or groundless suits [Retia v. Gorduiz, A.M. 1388 (1980)]. 6. Knowingly alleging an untrue statement of fact in a pleading [Young v. Batuegas, supra.]

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repeal or amendment, or assert as a fact that which has not been proved. In citing the Supreme Court’s decisions, and rulings, it is the bounden duty of courts, judges and lawyers to reproduce or copy the same word- for-word and punctuation mark-forpunctuation mark. Ever present is the danger that if not faithfully and exactly quoted, the decisions and rulings may lose their proper and correct meaning, to the detriment of other courts, lawyers and the public who may thereby be misled [Insular Life Employees Co. v. Insular Life Association, G.R. L-25291 (1971)]. The legal profession demands that lawyers thoroughly go over pleadings, motions and other documents dictated or prepared by them, typed or transcribed by their secretaries or clerks, before filing them with the court. If a client is bound by the acts of his counsel, with more reason should counsel be bound by the acts of his secretary who merely follows his orders [Adez Realty, Inc. v. CA, G.R. 100643 (1992)]. Professional misconduct involving the misuse of constitutional provisions for the purpose of insulting Members of this Court is a serious breach of the rigid standards that a member of good standing of the legal profession must faithfully comply with [In Re: Subpoena Duces

Tecum dated January 11, 2010 of Acting Director Aleu A. Amante, PIAB-C, Office of the Ombudsman and Re: Order of the Office of the Ombudsman Referring the complaint of Attys. Oliver O. Lozano and Evangeline J. LozanoEndriano Against Chief Justice Reynato S. Puno [ret.]. A.M. 10-1-13-SC & 10-9-9-SC (2012)]

Rule 10.03. A lawyer shall observe the rules

7. Allowing the use of a forged signature on a petition filed before a court [Velasco-Tamaray v. Daquis, A.C. 10868 (2016)].

Rule 10.02. A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by

of procedure and shall not misuse them to defeat the ends of justice.

Filing multiple actions constitutes an abuse of the court’s processes. Those who file multiple or repetitive actions subject themselves to disciplinary action for incompetence or willful violation of their duties as attorneys to act with good fidelity to the courts, and to maintain only such actions that appear to be just and consistent with truth and honor [Olivares v. Villalon, A.C. 6323 (2007)]. PAGE 28 OF 85

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A lawyer should not abuse his right of recourse to the courts for the purpose of arguing a cause that had been repeatedly rebuffed. [Garcia v. Francisco, A.C. 3923 (1993)]. It is the duty of an attorney to employ, for the purpose of maintain the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law [Sec. 20 (d), Rule 138, RoC] C.2. RESPECT FOR COURTS & JUDICIAL OFFICERS

Canon 11. A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.

Observing respect due to the courts means that a lawyer should conduct himself toward judges: (1) With courtesy everyone is entitled to expect [Paragas v Cruz, G.R. L-24438 (1965)]; (2) With the propriety and dignity required by the courts [Salcedo v Hernandez, G.R. L42992 (1935)]. Lawyers are duty bound to uphold the dignity and authority of the Court, to which they owe their fidelities, and to promote the administration of justice. Respect to the courts guarantees the stability of other institutions. [In re: Sotto, 82 Phil 595 (1949)].

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of the dispensation of justice [Estrada v. Sandiganbayan, G.R. 148560 (2000)]. Even as lawyers passionately and vigorously propound their points of view, they are bound by certain rules of conduct for the legal profession. This Court is certainly not claiming that it should be shielded from criticism. All the Court demands are the same respect and courtesy that one lawyer owes to another under established ethical standards. There is no exemption from this sworn duty for law professors, regardless of their status in the academic community or the law school to which they belong [Re: Letter of the UP Faculty, A.M. 10-10-4-SC (2011)]. In Bueno v. Raneses, A.M. 8383 (2012) the lawyer was disbarred because “he maligned the judge and the Judiciary by giving the impression that court cases are won, not on the merits, but through deceitful means – a decidedly black mark against the Judiciary.” Lawyers should not perform acts that would tend to undermine and/or denigrate the integrity of the courts, such as the subject checkbook entry which contumaciously imputed corruption against the Sandiganbayan. It is their sworn duty as lawyers and officers of the court to uphold the dignity and authority of the courts. Respect for the courts guarantees the stability of the judicial institution; without this guarantee, the institution would be resting on very shaky foundations. [PHILCOMPSAT Holdings Corporation v. Lokin, Jr. A.C. 11139 (2016)].

Rule 11.01. A lawyer shall appear in court properly attired.

If a pleading containing derogatory, offensive and malicious statements is submitted in the same court or judge in which the proceedings are pending, it is direct contempt, equivalent as it is to a misbehavior committed in the presence of or so near a court or judge as to interrupt the administration of justice. Direct contempt is punishable summarily [In re: Letter of Atty. Sorreda, A.M. 5-3-04 (2006)].

Respect begins with the lawyer’s outward physical appearance in court. Sloppy or informal attire adversely reflects on the lawyer and demeans the dignity and solemnity of court proceedings.

Liberally imputing sinister and devious motives and questioning the impartiality, integrity, and authority of the members of the Court result in the obstruction and perversion

PROPER ATTIRE

A lawyer who dresses improperly may be cited with contempt [Agpalo (2004)].

Male: Long-sleeved Barong Tagalog or coat and tie

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Female: Semi-formal or business attires Judges: Same attire as above under their robes Courts have ordered a male attorney to wear a necktie and have prohibited a female attorney from wearing a hat. However, the permission of a dress with a hemline five inches above the knee was held to be acceptable as such “had become an accepted mode of dress even in places of worship” [Aguirre (2006)]

Rule 11.02. A lawyer shall punctually appear at court hearings.

Punctuality is demanded by the respect which the lawyer owes to the court, the parties, and the opposing counsel [Funa]. Inexcusable absence from, or repeated tardiness in, attending a pre-trial or hearing may subject the lawyer to disciplinary action as his actions show disrespect to the court and are therefore considered contemptuous behavior [Agpalo (2004)]. Non-appearance at hearings on the ground that the issue to be heard has become moot and academic is a lapse in judicial propriety [De Gracia v. Warden of Makati, G.R. L-42032 (1976)].

Rule 11.03. A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts.

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officer of the court and as a citizen, to criticize in properly respectful terms and through legitimate channels the acts of courts and judges. But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. Intemperate and unfair criticism is a gross violation of the duty of respect to courts [In Re: Almacen, G.R. L-27654 (1970)]. The court does not close itself to comments and criticisms so long as they are fair and dignified. Going beyond the limits of fair comments by using insulting, disparaging and, intemperate language necessitates and warrants a rebuke from the court. While it is expected of lawyers to advocate their client’s cause, they are not at liberty to resort to arrogance, intimidation and innuendo [Sangalang v. IAC, G.R. 71169 (1988)]. It is human nature that there be bitter feelings which often reach to the judge as the source of the supposed wrong. A judge, therefore, ought to be patient, and tolerate everything which appears as but a momentary outbreak of disappointment. Lawyers may not be held to too strict an account for words said in the heat of the moment, because of chagrin at losing cases, and that the big way is for the court to condone even contemptuous language. While judges must exercise patience, lawyers must also observe temperate language as well [Soriano v. CA, G.R. 100633 and 101550 (2001)].

Rule 11.04. A lawyer shall not attribute to a

A lawyer’s language should be forceful but dignified, emphatic but respectful, as befitting an advocate and in keeping with the dignity of the legal profession [Surigao Mineral Reservation Board v. Cloribel, G.R. L-27072 (1970)]. Every citizen has the right to comment upon and criticize the actuations of public officers. This right is not diminished by the fact that the criticism is aimed at a judicial authority, or that it is articulated by a lawyer. Such right is especially recognized where the criticism concerns a concluded litigation, because then the court's actuations are thrown open to public consumption. Well-recognized therefore is the right of a lawyer, both as an

Judge motives not supported by the record or have no materiality to the case.

Post-litigation utterances or publications, made by lawyers, critical of the courts and their judicial actuations, whether amounting to a crime or not, which transcend the permissible bounds of fair comment and legitimate criticism and thereby tend to bring them into disrepute or to subvert public confidence in their integrity and in the orderly administration of justice, constitute grave professional misconduct which may be visited with disbarment or other lesser appropriate disciplinary sanctions by the Supreme Court in the exercise of the prerogatives inherent in it

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as the duly constituted guardian of the morals and ethics of the legal fraternity. [In Re: Almacen, supra.].

C.3. ASSISTANCE IN THE SPEEDY & EFFICIENT ADMINISTRATION OF JUSTICE

The rule allows criticism so long as it is supported by the record or it is material to the case [Agpalo (2004)].Any serious accusation against a judicial officer that is utterly baseless, unsubstantiated and unjustified shall not be countenanced [Go v. Abrogar, G.R. 152672 (2007)].

Canon 12. A lawyer shall exert every effort

The constitutional right to freedom of expression of members of the bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the public’s faith in the legal profession and the justice system [Re: Letter of UP Law Faculty, supra.].

and consider it his duty to assist in the speedy and efficient administration of justice. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. [Sec. 16, Art. III, 1987 Constitution] It is the duty of an attorney not to encourage either the commencement or the continuance of an action or proceeding or delay any man’s cause from any corrupt motive or interest. [Sec. 20(g), Rule 138, RoC]. The filing of another action containing the same subject matter, in violation of the doctrine of res judicata, runs contrary to this canon [Siy Lim v. Montano, A.C. 5653 (2006)].

Rule 11.05. A lawyer shall submit grievances

against a Judge to the proper authorities only. The duty to respect does not preclude a lawyer from filing administrative complaints against erring judges.

Rule 12.01. A lawyer shall not appear for

trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its preference. He should also be ready with the original documents for comparison with the copies.

The lawyer shall not file an administrative case until he has exhausted judicial remedies which result in a finding that the judge has gravely erred [Agpalo (2004)]. It has been held in Maceda v. Vasquez, G.R. 102781 (1993) that in criminal complaints against a judge or other court employees arising from their administrative duties, the Ombudsman must defer action and refer the same to the Supreme Court for determination whether said judges or court employees acted within the scope of their administrative duties.

This could be read in conjunction with Rule 18.02, CPR: “A lawyer shall not handle any legal matter without adequate preparation.” Without adequate preparation, the lawyer may not be able to effectively assist the court in the efficient administration of justice.

Otherwise, in the absence of any administrative action, the investigation being conducted by the Ombudsman encroaches into the court’s power of administrative supervision over all courts and its personnel under Sec. 6, Art. VIII, 1987 Constitution, in violation of the doctrine of separation of powers.

NON-OBSERVANCE OF PREPARATION: (1) The postponement of the pre-trial or hearing, which would thus entail delay in the early disposition of the case; (2) The judge may consider the client nonsuited or in default; (3) The judge may consider the case deemed submitted for decision without client’s PAGE 31 OF 85

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evidence, to (2004)].

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his prejudice

[Agpalo

Half of the work of the lawyer is done in the office. It is spent in the study and research. Inadequate preparation obstructs the administration of justice [Martin’s Legal Ethics (1988)].

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willful violation of this rule may subject him to appropriate disciplinary action or render him liable for the costs of litigation [Agpalo (2004)]. This Rule prohibits against forum shopping. FORUM SHOPPING (1) When, as a result or in anticipation of an adverse decision in one forum, a party seeks a favorable opinion in another forum through means other than appeal or certiorari by raising identical causes of action, subject matter, and issues.

A newly hired counsel who appears in a case in the midstream is presumed and obliged to acquaint himself with all the antecedent processes and proceedings that have transpired in the record prior to his takeover [Villasis v. CA, G.R. L-34369 (1974)].

(2) The institution of involving the same parties for the same cause of action, either simultaneously or successively, on the supposition that one or the other court would come out with a favorable disposition [Araneta v. Araneta, G.R. 190814 (2013)].

Some Acts Which Amount to Obstruction in the Administration of Justice: 1.

Inadequate preparation;

2. Instructing complaining witness in a criminal action not to appear at the schedule hearing so that the case against the client would be dismissed; 3. Asking a client to plead guilty to a crime which the lawyer knows his client did not commit; 4. Advising a client who is detained for crime to escape from prison; 5. Employing dilatory tactics to frustrate satisfaction of clearly valid claims; 6. Prosecuting clearly frivolous cases or appeals to drain the resources of the other party and compel him to submit out of exhaustion;

An indicium of the presence of or the test for determining whether a litigant violated the rule against, forum shopping is where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other case.

REQUISITES OF LITIS PENDENTIA (1) Identity of parties, or at least such parties as represent the same interests in both actions;

7. Filing multiple petitions or complaints for a cause that has been previously rejected in the false expectation of getting favorable action;

(2) Identity of rights asserted and relief prayed for, the relief being founded on the same 
 facts; and (3) Identity of the two preceding particulars is such that any judgment rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other [HSBC v. Catalan, G.R. 159590 (2004)].

8. Other acts of similar nature [Funa].

Rule 12.02. A lawyer shall not file multiple actions arising from the same cause.

Ratio: There is an affirmative duty of a lawyer to check against useless litigations. His signature in every pleading constitutes a certificate by him that to the best of his knowledge there is a good ground to support it and that it is not to interpose for delay. The

REQUISITES OF RES JUDICATA:

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(1) There be a decision on the merits; (2) It be decided by a court of competent jurisdiction;

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(3) The decision is final; and (4) The two actions involved identical parties, subject matter, and causes of action. (1) Sec. 5, Rule 7, RoC requires that a certificate against forum shopping be executed that:Plantiff or principal party has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; if there is such other pending action or claim, a complete statement of the present status thereof; (2) If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five days there from to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion after hearing.

SUBMISSION OF A FALSE CERTIFICATION OR NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS IN A CERTIFICATION OF NON-FORUM SHOPPING: (1) Shall constitute indirect contempt of court; (2) Without prejudice to the corresponding administrative and criminal actions. IF ACTS OF THE PARTY OR HIS COUNSEL CONSTITUTE WILLFUL AND DELIBERATE FORUM SHOPPING: (1) Be a ground for summary dismissal with prejudice; (2) Constitute direct contempt; (3) Be a cause for administrative sanctions.

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be complied with in the filing of complaints, petitions or other initiatory pleadings in all courts and agencies applies to quasi-judicial bodies, such as the NLRC or Labor Arbiter [Agpalo (2004)].

Rule 12.03. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.

The court censures the practice of counsels who secures repeated extensions of time to file their pleadings and thereafter simply let the period lapse without submitting the pleading on even an explanation or manifestation of their failure to do so. There exists a breach of duty not only to the court but also to the client [Achacoso v. CA, G.R. L-35867 (1973)]. An attorney is bound to protect his client’s interest to the best of his ability and with utmost diligence. A failure to file brief for his client certainly constitutes inexcusable negligence on his part [Ford v. Daitol, A.C. 3736 (1995)].

Rule 12.04. A lawyer shall not unduly delay

a case, impede the execution of a judgment or misuse court processes. It is one thing to exert to the utmost one’s ability to protect the interest of one’s client. It is quite another thing to delay if not defeat the recovery of what is justly due and demandable due to the misleading acts of a lawyer [Manila Pest Control v. WCC, G.R. L-27662 (1968)]. Once a judgment becomes final and executory, the prevailing party should not be denied the fruits of his victory by some subterfuge devised by the losing part. Unjustified delay in the enforcement of a judgment sets at naught the role of courts in disposing justiciable controversies with finality [Aguilar v. Manila Banking Corporation, G.R. 157911 (2006)]. The failure of a lawyer to follow the directives of the court to submit documents and to pay damages after his suspension from the

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Rule 12.07. A lawyer shall not abuse,

profession constitutes gross misconduct [Floran v. Ediza, A.C. No. 5325 (2016)] If a lawyer is honestly convinced of the futility of an appeal in a civil suit, he should not hesitate to inform his client that mostly likely the verdict will not be altered. A lawyer should temper his client’s desire to seek appellate review [Agpalo (2004)].

Rule 12.05. A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination.

browbeat or harass a witness nor needlessly inconvenience him. It is the duty of a lawyer:

(f)to abstain from all offensive personality and to advance no fact prejudicial to the honor and reputation of a party or witness unless required by the justice of the cause with which he is charged [Sec. 20(f), Rule 138. RoC]. (1) RIGHTS OF WITNESSES [Sec. 3, Rule 132, RoC];To be protected from irrelevant, improper or insulting questions and from a harsh or insulting demeanor;

Ratio: The purpose is to prevent the suspicion that he is coaching the witness what to say during the resumption of the examination; to uphold and maintain fair play with the other party and to prevent the examining lawyer from being tempted to coach his own witness to suit his purpose [Callanta].

(2) Not to be detained longer than the interests of justice require (3) Not to be examined except as to matters pertinent to the issues before the court; (4) Not to give an answer which will tend to subject him to a penalty for an offense 
 unless otherwise provided by law;

Rule 12.06. A lawyer shall not knowingly

(5) Not to give an answer which will tend to degrade the witness’ reputation, but a witness must answer the fact of any previous 
 final conviction for a criminal offense.

assist a witness to misrepresent himself or to impersonate another. While a lawyer may interview witnesses in advance of trial or attend to their needs if needed, the lawyer should avoid any action as may be misrepresented as an attempt to influence the witness what to say in court [Agpalo (2004)].

Art. 184, Revised Penal Code (hereinafter, RPC). The lawyer who presented a witness knowing him to be a false witness is criminally liable for offering false testimony in evidence. The lawyer is both criminally and administratively liable.

Subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned [or induced] does testify under circumstances rendering him guilty of perjury [US v. Ballena, G.R. L-6294 (1911)].

PD 1829 (PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS) PENALIZES THE FOLLOWING: (1) Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases; (2) Giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of

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the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.

Rule 12.08. A lawyer shall avoid testifying in behalf of his client, except:

(a) On formal matters, such as the mailing, authentication or custody of an instrument, and the like; or (b) On substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

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impropriety which tends to influence, or gives the appearance of influencing the court. The judiciary, as the branch of government tasked to administer justice, to settle justiciable controversies or disputes involving enforceable and demandable rights, and to afford redress of wrongs for the violation of said rights must be allowed to decide cases independently, free of outside influence or pressure [In Re: Published Alleged Threats against Members of the Court in the Plunder Law Case Hurled by Atty. Leonard De Vera, A.M. 01-12-03-SC (2002)].

Rule 13.01. A lawyer shall not extend

Ratio: The underlying reason for the impropriety of a lawyer acting in such dual capacity lies in the difference between the function of a witness and that of an advocate. The function of a witness is to tell the facts as he recalls then in answer to questions. The function of an advocate is that of a partisan.It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. The lawyer will find it hard to disassociate his relation to his client as an attorney and his relation to the party as a witness [Agpalo (2004)]. When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client [PNB v. Uy Teng Piao, G.R. L-35252 (1932)].

extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges. Marked attention and unusual hospitality on the part of a lawyer to a judge, uncalled for by the personal relations of the parties, subject both the judge and the lawyer to misconstructions of motive and should be avoided [Canon 3, Canons of Professional Ethics]. In order not to subject both the judge and the lawyer to suspicion, the common practice of some lawyers of making judges and prosecutors godfathers of their children to enhance their influence and their law practice should be avoided by judges and lawyers alike [IBP Committee]. It is improper for a litigant or counsel to see a judge in chambers and talk to him about a matter related to the case pending in the court of said judge [Austria v. Masaquel, G.R. L22536 (1967)].

C.4. RELIANCE ON MERITS OF HIS CAUSE & AVOIDANCE OF ANY IMPROPRIETY WHICH TENDS TO INFLUENCE OR GIVES THE APPEARANCE OF INFLUENCE UPON THE COURTS

Canon 13. A lawyer shall rely upon the merits of his cause and refrain from any

Rule 13.02. A lawyer shall not make public

statements in the media regarding a pending case tending to arouse public opinion for or against a party. Ratio: Newspaper publications regarding a pending or anticipated litigation may interfere

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with a fair trial, prejudice the administration of justice, or subject a respondent or an accused to a trial by publicity and create a public inference of guilt against him [Agpalo (2004)]. Public statements may be considered contemptuous when the character of the act done and its direct tendency to prevent and obstruct the discharge of official duty. In the original decision of the Supreme Court

in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases against Former President Joseph Estrada, A.M. 01-4-03-SC (2001), it was stated that the propriety of granting or denying the petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. It was held that when these rights race against one another, the right of the accused must be preferred to win, considering the possibility of losing not only the precious liberty but also the very life of an accused.

In the resolution of the motion for reconsideration, the Supreme Court allowed the video recording of proceedings, but provided that the release of the tapes for broadcast should be delayed. In so doing, concerns that those taking part in the proceedings will be playing to the cameras and will thus be distracted from the proper performance of their roles – whether as counsel, witnesses, court personnel, or judges – will be allayed.

Rule 13.03. A lawyer shall not brook or invite

interference by another branch or agency of the government in the normal course of judicial proceedings. Ratio: The rule is based upon the principle of separation of powers [Aguirre (2006)]. It also endangers the independence of the judiciary [IBP Committee].

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The Supreme Court is supreme — the third great department of government entrusted exclusively with the judicial power to adjudicate with finality all justiciable disputes, public and private. No other department or agency may pass upon its judgments or declare them 'unjust.' Consequently, and owing to the foregoing, not even the President of the Philippines as Chief Executive may pass judgment on any of the Court's acts. [Maglasang v. People, G.R. No. 90083 (1990)]

D. TO THE CLIENTS (CANONS 14-22) The attorney-client relationship is: (1) Strictly personal; (2) Highly confidential; (3) Fiduciary. A written contract, although the best evidence to show the presence of an attorney-client relationship is not essential for the employment of an attorney. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession [Pacana v. Pascual-Lopez, A.C. No. 8243 (2009)]. CONCEPT OF RETAINER Either the act of a client by which he engages the services of an attorney to render legal advice or to defend and prosecute his cause in court (general or special) OR the fee which a client pays to an attorney when the latter is retained [Agpalo (2004)]. D.1. AVAILABILITY OF SERVICE WITHOUT DISCRIMINATION Canon 14. A lawyer shall not refuse his services to the needy. General Rule: A lawyer is not obliged to act as legal counsel for any person who may wish to

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become his client. He has the right to decline employment.

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determined by the fiscal or judge, taking into account the members of his family dependent upon him for subsistence [Sec. 2, RA 6033 (An Act Requiring Courts to Give Preference to Criminal Cases Where the Party or Parties Involved are Indigents)]

Exceptions: (1) A lawyer shall not refuse his services to the needy [Canon 14, CPR]

(2) A person who has no visible means of support or whose income does not exceed P300.00 per month or whose income even in excess of P300.00 per month is insufficient for the subsistence of his family [Sec. 2, RA 6035 (An Act Requiring Stenographers to Give Free Transcript of Notes to Indigent and Low Income Litigants and Providing a Penalty for the Violation Thereof)].

(2) A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. [Rule 14.01, CPR] (3) A lawyer may not refuse to accept representation of an indigent client unless: a. He is in no position to carry out the work effectively or competently; b. He labors under a conflict of interest between him and the prospective client or between a present client and the prospective client. [Rule 14.03, CPR]

LAWS ON INDIGENTS OR LOW INCOME LITIGANTS:

Ratio: It is a declared policy of the State to value the dignity of every human person and guarantee the rights of every individual, particularly those who cannot afford the services of counsel [RA 9999 (Free Legal Assistance Act of 2010)]. RA 9999 provides incentives for free legal service. Thus, a lawyer or professional partnerships rendering actual free legal services shall be entitled to an allowable deduction from the gross income, (1)

The amount that could have been collected for the actual free legal services rendered OR

(2)

Up to 10% of the gross income derived from the actual performance of legal profession, whichever is lower.

This is different from the 60-hour mandatory legal aid services under Mandatory Legal Aid Service for Practicing Lawyers, B.M. 2012 (2009). INDIGENT: (1) A person who has no visible means of income or whose income is insufficient for the subsistence of his family, to be PAGE 37 OF 85

(1) All courts shall give preference to the hearing and/or disposition of criminal cases where an indigent is involved either as the offended party or accused [Sec. 1, RA 6033] (2) Any indigent litigant may, upon motion, ask the Court for adequate travel allowance to enable him and his indigent witnesses to attendant the hearing of a criminal case commenced by his complaint or filed against him. The allowance shall cover actual transportation expenses by the cheapest means from his place of residence to the court and back. When the hearing of the case requires the presence of the indigent litigant and/or his indigent witnesses in court the whole day or for two or more consecutive days, allowances may, in the discretion of the Court, also cover reasonable expenses for meal and lodging [Sec. 1, RA 6034 (An Act Providing Transportation and Other Allowances for Indigent Litigants)]. A stenographer who has attended a hearing before an investigating fiscal or trial judge or hearing commissioner of any quasi-judicial body or administrative tribunal and has officially taken notes of the proceeding thereof shall, upon written request of an indigent or low income litigant, his counsel or duly authorized representative in the case

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concerned, give within a reasonable period to be determined by the fiscal, judge, commissioner or tribunal hearing the case, a free certified transcript of notes take by him on the case [Sec. 1, RA 6035] This Canon could be read in conjunction with Rule 2.01, CPR: “A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.” i. Services Regardless of a Person’s Status

Rule 14.01. A lawyer shall not decline to

represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. It is the duty of an attorney, in the defense of a person accused of a crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law [Sec. 20(i), Rule 138, RoC]

employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown [Sec. 31, Rule 138] Counsel de oficio - one appointed or assigned by the court. Counsel de parte- one employed or retained by the party himself. WHO MAY BE APPOINTED AS COUNSEL DE OFICIO IN CRIMINAL CASES: (1) A member of the bar in good standing who, by reason of their experience and ability, can competently defend the accused [Sec. 7, Rule 116, RoC]; (2) In localities without lawyers: (a) Any person resident of the province and of good repute for probity and ability [Sec. 7, Rule 116, RoC];

Regardless of personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse [IBP Committee]

•

(b) A municipal judge or a lawyer employed in any branch, subdivision or instrumentality of the government within the province [Sec. 1, PD 543 (Authorizing the Designation of Municipal Judges and Lawyers in any Branch of the Government Service to Act as Counsel De Oficio for the Accused Who are Indigent in Places Where There are No Available Practicing Attorneys].

ii. Services as Counsel de Oficio

Rule 14.02. A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.

RoC provides: (1) It is the duty of an attorney never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed [Sec. 20(h), Rule 138];

Note: In relation to Sec. 34, Rule 138, RoC this is only allowed in the municipal trial court.

CONSIDERATIONS IN THE APPOINTMENT OF A COUNSEL DE OFICIO:

(2) A court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to PAGE 38 OF 85

(1) Gravity of the offense; (2) Difficulty of the questions that may arise; (3) Experience and ability of the appointee.

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WHEN THE COURT MAY APPOINT A COUNSEL DE OFICIO (IN CRIMINAL ACTIONS):

Rule 14.03. A lawyer may not refuse to

(1) Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de officio to defend him, [Sec. 6, Rule 116, RoC];

(a) He is in no position to carry out the work effectively or competently;

(2) It is the duty of the clerk of the trial court, upon filing of a notice of appeal, to ascertain from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de officio [Sec. 13, Rule 122, RoC];

Reason: One of the burdens of the privilege to practice law is to render, when so required by the court, free legal services to an indigent litigant.

(3) The clerk of the CA shall designate a counsel de oficio if it appears from the case record that: (a) The accused is confined in prison, (b) Is without counsel de parte on appeal, or (c) Has signed the notice of appeal himself, the clerk of Court of Appeals shall designate a counsel de oficio. An appellant who is not confined in prison may, upon request, be assigned a counsel de officio within ten days from receipt of the notice to file brief and he establishes his right thereto [Sec. 2, Rule 124, RoC]

accept representation of an indigent client unless:

(b) He labors under a conflict of interest between him and the prospective client or between a present client and the prospective client.

Even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter’s rights. [Rule 2.02, Canon 2, CPR]

Rule 14.04. A lawyer who accepts the cause of

a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients. Neither the amount of attorney's fees nor the client's financial ability to pay such fees should serve as the test to determine the extent of the lawyer's devotion to his client’s cause [Agpalo (2004)]. If a lawyer volunteers his services to a client, and therefore not entitled to attorney’s fees, he is still bound to attend to a client’s case with all due diligence and zeal. [Blanza v. Arcangel, A.C. No. 492 (1967)] Pursuant to A.M. 08-11-7-SC IRR (2009), clients of the National Legal Aid Committee and the IBP local chapter’s legal aid offices are exempted from the payment of legal fees.

iii. Valid Grounds for Refusal to Serve

Under Sec. 16-D, RA 9406 (An Act Reorganizing and Strengthening the Public Attorney's Office (PAO)), clients of the PAO are exempte from paying docket and other fees incidental to institution actions in court and other quasi-judicial bodies.

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Confidences of clients

D.2. CANDOR, FAIRNESS AND LOYALTY TO CLIENTS

exactly pertinent to the case).

Canon 15. A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients. i. Confidentiality Rule Purpose: To protect the client from possible breach of confidence as a result of a consultation with a lawyer [Hadjula v. Madianda, A.C. No. 6711 (2007)] The relationship between a lawyer and his/her client should ideally be imbued with the highest level of trust and confidence. This is the standard of confidentiality that must prevail to promote a full disclosure of the clients most confidential information to his/her lawyer for an unhampered exchange of information between them [Aniñon v. Sabitsana, Jr., A.C. 5098 (2012). Confidential communication- information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given [Mercado v. Vitriolo, A.C. No. 5108 (2005)].

Confidences of clients

Secrets of clients

Refer to information protected by attorney-client privilege under the Rules of Court (i.e., information pertinent to the case being handled).

Refer to information gained in the profession relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client (i.e., information not

Secrets of clients

Communication may be transmitted by any form of agency, such as a messenger, an interpreter or any other form of transmission. It is immaterial whether the agent is the agent of the attorney, the client or both. Question of privilege is determined by the court. The burden of proof is on the party who asserts the privilege.

Canon 21 enjoins a lawyer to preserve the

confidence and secrets of his client even after the attorney-client relation is terminated. ii. Privileged Communications

Rule 15.02. A lawyer shall be bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client.

Ratio: to make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will not be divulged nor used against him, and for the lawyer to be equally free to obtain information from the prospective client [IBP Committee]. REQUISITES (1) The person to whom information is given is a lawyer. •

However, if a person is pretending to be a lawyer and client discloses confidential communications, the attorney-client privilege applies;

(2) There is a legal relationship existing, except in cases of prospective clients; (3) Legal advice must be sought from the attorney in his professional capacity with respect to communications relating to that purpose. (4) The client must intend the communication be confidential. PAGE 40 OF 85

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PERSONS ENTITLED TO PRIVILEGE

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An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity [Sec. 24(b), Rule 130].

(1) The lawyer, client, and third persons who by reason of their work have acquired information about the case being handled, including: (a) Attorney’s secretary, stenographer and clerk; (b) Interpreter, messengers, or agents transmitting communication; (c) Accountant, scientist, physician, engineer who has been hired for effective consultation;

General rule: As a matter of public policy, a client’s identity should not be shrouded in mystery. Thus, a lawyer may not invoke the privilege and refuse to divulge the name or identity of this client.

(2) Assignee of the client’s interest as far as the communication affects the realization of the assigned interest.

Exceptions: Client identity is privileged in the following instances:

SCOPE OF THE PRIVILEGE

(1) Where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice.

(1) Does not cover transactions that occurred beyond the lawyer’s employment with the client [Palm v. Iledan, Jr., A.C. No. 8242 (2009)].

(2) Where disclosure would open the client to civil liability

(2) Period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. If the crime was committed in the past, the privilege applies. If it is still to be committed, the privilege does not apply, because the communication between a lawyer and his client must be for a lawful purpose or in furtherance of a lawful end to be privileged [People v. Sandiganbayan, G.R. No. 115439 (1996)].

(3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime [Regala v. Sandiganbayan, G.R. 105938 (1996)].. Ratio: (1) The court has a right to know that the client whose privileged information is sought to be protected is flesh and blood.

(3) Limited only to communications which are legitimately and properly within the scope of a lawful employment of a lawyer. It does not extend to those made in contemplation of a crime or perpetration of a fraud. It is not within the profession of a lawyer to advise a client as to how he may commit a crime. [Genato v. Silapan, A.C. 4078 (2003)].

(2) The privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach unless there is a client. (3) The privilege generally pertains to the subject matter of the relationship. (4) Due process considerations require that the opposing party should, as a general rule, know his adversary [Regala v. Sandiganbayan, supra.].

(4) Embraces not only oral or written statements but also actions, signs or other means of communications.

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Information relating to the identity of the client may fall within the ambit of the privilege when the client’s name itself has an independent significance, such that disclosure would then reveal client confidences [Regala v. Sandiganbayan, supra. ] General rule: The protection given to the client is perpetual and does not cease with the termination of the litigation, nor is it affected by the client’s ceasing to employ the attorney and retaining another, or by any other change of relation between them. It even survives the death of the client [Bun Siong Yao v. Aurelio, A.C. No. 7023 (2006)] Exception: Some privileged communications lose their privileged character by some supervening act done pursuant to the purpose of the communication (e.g., a communication intended by the client to be sent to a third person through his attorney loses confidential character once it reached the third party).

EXAMPLES OF PRIVILEGED MATTERS (1) Work product of lawyer (his effort, research and thought contained in his file); (2) Report of a physician, an accountant, an engineer or a technician, whose services have been secured by a client as part of his communication to his attorney or by the attorney to assist him render effective legal assistance to his client; (3) Records concerning an accident in which a party is involved; (4) Consultation which has to do with the preparation of a client to take the witness stand.

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Rule 15.03. A lawyer shall not represent

conflicting interests except by written consent of all concerned given after a full disclosure of the facts. The rule prohibiting conflict of interest was fashioned to prevent situations wherein a lawyer would be representing a client whose interest is directly adverse to any of his present or former clients [Tulio v. Bunhangin, A.C. No. 7110, (2016)] It is explicit that a lawyer is prohibited from representing new clients whose interests oppose those of a former client in any manner, whether or not they are parties in the same action or on totally unrelated cases [Orola v. Ramos, A.C. 9860 (2013)]. There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. [Hornilla v. Salunat, A.C. 5804 (2003)]. It is only upon strict compliance with the condition of full disclosure of facts that a lawyer may appear against his client; otherwise, his representation of conflicting interests is reprehensible. Such prohibition is founded on principles of public policy and good taste as the nature of the lawyer-client relations is one of trust and confidence of the highest degree [Nuigue v. Sedillo, A.C. 9906 (2013)]. Lawyers are expected not only to keep inviolate the clients confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice [Gonzales v. Cabucana, A.C. 6836 (2006)]. REQUISITES

iii. Conflict of Interest

(1) There are conflicting duties;

Rule 15.01. A lawyer, in conferring with a

(2) The acceptance of the new relations invites or actually leads to unfaithfulness or double-dealing to another client; or

prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client.

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(3) The attorney will be called upon to use against his first client any knowledge acquired in the previous employment.

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However, he shall not act as counsel for any of them. [Agpalo (2004)]

TESTS OF CONFLICT OF INTERESTS (1) Whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double-dealing in its performance. (2) If the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represented him and also whether he will be called upon in his new relation to use against the first client any knowledge acquired through their connection (3) Whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client [Hornilla v. Salunat, supra.]. (4) Whether the lawyer will be asked to use against his former client any confidential information acquired through their connection or previous employment [Palm v. Iledan, Jr., A.C. 8242 (2009)] Note: The test to determine whether there is a conflict of interest in the representation is probability, not certainty, of conflict. EFFECTS OF CONFLICT OF INTEREST Representing adverse interest may result in: (1) Disqualification as counsel in the new case;

General rule: A lawyer may not represent two opposing parties at any point in time. A lawyer need not be the counsel-of-record of either party. It is enough that the counsel had a hand in the preparation of the pleading of one party. Exception: When the parties agree AND for amicable settlement [Agpalo (2004)]. At a certain stage of the controversy, before it reaches the court, a lawyer may represent conflicting interests with the consent of the parties [Dee v. CA, G.R. No. 77439 (1989)] iv. Candid and Honest Advice to Clients

Rule 15.05. A lawyer when advising his client

shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understating the prospects of the case. A lawyer is bound to give candid and honest opinion on the merit or lack of merit of client’s case, neither overstating nor understating the prospect of the case. He should also give an honest opinion as to the probable results of the case [Agpalo (2004)] The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay [Sec. 3, Rule 7, RoC]

(2) If prejudicial to interests of latter client, setting aside of a judgment;

vi. Compliance with Laws

(3) Administrative and criminal (for betrayal of trust) liability;

client compliance with the laws and principles of fairness.

(4) Forfeiture of attorney’s fees.

It is the duty of an attorney to counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law [Sec. 20(c), Rule 138, RoC].

Rule 15.04. A lawyer may, with the written

consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes. An attorney’s knowledge of the law and his reputation for fidelity may make it easy for the disputants to settle their differences amicably.

Rule 15.07. A lawyer shall impress upon his

A lawyer is required to represent his client within the bounds of law. He is enjoined to employ only fair and honest means to attain the lawful objectives of his client and not to allow his client to dictate the procedure in handling the case.

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A lawyer appears in court in representation of his client not only as an advocate but also as an officer of the court. To permit lawyers to resort to unscrupulous practices for the protection of the supposed rights of their clients is to defeat the administration of justice [Agpalo (2004)] vii. Concurrent Practice of Another Profession

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Ratio: The prohibition is based on the existing relation of trust or the lawyer’s peculiar control over the property. A lawyer is not barred from dealing with his client, but the transaction must be characterized with utmost honesty and good faith. The burden is on the attorney to prove that the transaction was fair and that it did not proceed from undue influence [Agpalo (2004)].

Rule 15.08. A lawyer who is engaged in

another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.

REQUISITES (1) There is an attorney-client relationship; (2) The property or interest of the client is in litigation;

Exercise of dual profession is not prohibited but a lawyer must make it clear when he is acting as a lawyer or when he is acting in another capacity, especially in occupations related to the practice of law [In re: Rothman, 12 N.J. 528 (1953)] Ratio: Certain ethical considerations may be operative in one profession and not in the other [Agpalo (2004)] A lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. Business transactions between an attorney and his client are disfavored and discouraged by policy of law because by virtue of a lawyer’s office, he is an easy position to take advantage of the credulity and ignorance of his client. Thus, there is no presumption of innocence or improbability of wrongdoing in favor of lawyers [Nakpil v. Valdez, A.C. No. 2040 (1998)]

(3) The attorney takes part as counsel in the case; (4) The attorney purchases or acquires the property or right, by himself or through another, during the pendency of litigation [Laig v. CA, G.R. No. L-26882 (1978)] Any scheme which has the effect of circumventing the law comes within the prohibition [Agpalo (2004)]. INSTANCES WHEN PROHIBITION IN ART. 1491, CIVIL CODE APPLIES: (1) Even if the purchase or lease of the property in litigation is in favor of a partnership, of which counsel is a partner [Mananquil v. Villegas, A.C. No. 2430 (1990)] (2) If the purchase is made by the wife of the attorney [In re: Calderon, G.R. No. L-2409 (1907)]

D.3. CLIENT’S MONEYS AND PROPERTIES

(3) Mortgage of property in litigation to the lawyer. In this case, acquisition is merely postponed until foreclosure but effect is the same. It also includes assignment of property [Ordonio v. Eduarte, A.M. No. 3216, (1992)].

Canon 16. A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

Lawyers cannot acquire or purchase, even at a public or judicial auction, either in person or through the mediation of another, the property and rights which may be the object of any litigation in which they take part by virtue of their profession [Art. 1491(5), Civil Code].

The purchase by a lawyer of the property in litigation from his client is void and could produce no legal effect [Arti. 1409(7), Civil Code]

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INSTANCES WHEN PROHIBITION IN ART. 1491 DOES NOT APPLY: (1) When the attorney is not a counsel in the case involving the same property at the time of acquisition; (2) When purchaser is a corporation, even if the attorney was an officer [Tuason v. Tuason, G.R. No. L-3404 (1951)] (3) When sale takes place after termination of litigation, except if there was fraud or use/abuse of confidential information or where lawyer exercised undue influence; (4) Where property in question is stipulated as part of attorney’s fees, provided that, the same is contingent upon the favorable outcome of litigation and, provided further, that the fee must be reasonable.

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appropriated the same for his own use in violation of the trust reposed in him by his client. [Sison v. Camacho, A.C. No. 10910, (2016)] ii. Commingling of Funds

Rule 16.02.A lawyer shall keep the funds of

each client separate and apart from his own and those of others kept by him. A lawyer should not commingle a client’s money with that of other clients and with his private funds, nor use the client’s money for his personal purposes without the client’s consent. [Daroy v. Legaspi, A.C. No. 936 (1975)] iii. Delivery of Funds

Rule 16.03. A lawyer shall deliver the funds i. Fiduciary Relationship

Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client.

Ratio: The lawyer merely holds said money or property in trust. When a lawyer collects or receives money from his client for a particular purpose (such as for filing fees, registration fees, transportation and office expenses), he should promptly account to the client how the money was spent. If he does not use the money for its intended purpose, he must immediately return it to the client [Belleza v. Macasa, A.C. No. 7815 (2009)] The fact that a lawyer has a lien for fees on money in his hands would not relieve him from the duty of promptly accounting for the funds received [Daroy v. Legaspi, A.C. No. 936 (1975)]

and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.

When an attorney unjustly retains in his hands money of his client after it has been demanded, he may be punished for contempt as an officer of the Court who has misbehaved in his official transactions; but proceedings under this Sec. shall not be a bar to criminal prosecution [Sec. 25, Rule 138, RoC] Money collected by a lawyer in pursuance of a judgment in favor of his clients is held in trust and must be immediately turned over to them [Busiños v. Ricafort, A.C. No. 4349 (1997)]

Ethical and practical considerations make it both natural and imperative for a lawyer to issue receipts, even if not demanded, and to keep copes of the receipts for his own records. [Tarog v. Ricafort, A.C. 8243 (2011)]

The failure of an attorney to return the client’s money upon demand gives rise to the presumption that he has misappropriated it for his own use to the prejudice of and in violation of the trust reposed in him by the client [Jinon v. Jiz, A.C. No. 9615 (2013)]

A lawyer's failure, to return upon demand, the funds held by him on behalf of his client gives rise to the presumption that he has

An attorney has a lien upon the funds documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid and may apply

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such funds to the satisfaction thereof [Sec. 37, Rule 138, RoC]

A LAWYER IS PROHIBITED FROM LENDING MONEY TO HIS CLIENT

BUT a lawyer is not entitled to unilaterally appropriate his client’s money for himself by the mere fact alone that the client owes him attorney’s fees. The fact alone that a lawyer has a lien for fees on moneys in his hands collected for his client does not relieve him of his duty to promptly account for the moneys received; his failure to do so constitutes professional misconduct [Rayos v. Hernandez, G. R. 169079 (2007)].

Ratio: The canon intends to assure the lawyer’s independent professional judgment, for if the lawyer acquires a financial interest in the outcome of the case, the free exercise of his judgment may be adversely affected [Agpalo (2004)].

iv. Borrowing or Lending

Rule 16.04. A lawyer shall not borrow money

from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except when, in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client. A LAWYER IS PROHIBITED FROM BORROWING MONEY FROM HIS CLIENT Ratio: This rule is intended to prevent the lawyer from taking advantage of his influence over his client [Junio v. Grupo, A.C. 5020 (2001)]. The canon presumes that the client is disadvantaged by the lawyer’s ability to use all the legal maneuverings to renege on her obligation [Frias v. Lozada, A.C. No. 6656 (2005)] The profession demands of an attorney an absolute abdication of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client [Barnachea v. Quiocho, A.C. No. 5925 (2003)] A lawyer who borrows jewelry from his client in order to obtain and appropriate for himself the proceeds from a pledge is liable under this canon. [Yu v. Dela Cruz, A.C. No. 10912, (2016)]

Exception: When, in the interest of justice, he has to advance necessary expenses in a legal matter he is handling. D.4. FIDELITY TO CLIENT’S CAUSE Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him. The failure to exercise due diligence and the abandonment of a client’s cause make such a lawyer unworthy of the trust which the client has reposed on him [Cantilller v. Potenciano, A.C. No. 3195 (1989)] Once he agrees to take up the cause of the client, no fear or judicial disfavor or public unpopularity should restrain him from the full discharge of his duty [Santiago v. Fojas, A.M. No. 4103 (1995)] In the discharge of his duty of entire devotion to the client's cause, a lawyer should present every remedy or defense authorized by law in support of his client’s cause, regardless of his personal views. He sjould not be afraid of the possibility that he may displease the judge or the general public [Agpalo (2004)]. D.5. COMPETENCE AND DILIGENCE Canon 18. A lawyer shall serve his client with competence and diligence. A lawyer must exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of the business he undertakes to do, as any other member of the bar similarly situated commonly possesses and exercises. He is not, however, bound to exercise extraordinary diligence [Pajarillo v. WCC, G.R. No. L-42927 (1980)] A client is entitled to the benefit of any and every remedy and defense authorized by law,

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and is expected to rely on the lawyer to assert every such remedy or defense [Garcia v. Bala, A.C. No. 5309 (2005)] In the absence of evidence on the contrary, however, a lawyer is presumed to be prompt and diligent in the performance of his obligations and to have employed his best efforts, learning, and ability in the protection of his client’s interests and in the discharge of his duties as an officer of the court [Agpalo (2004)]. i. Adequate Preparation

Rule 18.02. A lawyer shall not handle any legal matter without adequate preparation.

A lawyer should safeguard his client’s rights and interests by thorough study and preparation, mastering applicable law and facts involved in a case, and keeping constantly abreast of the latest jurisprudence and developments in all branches of the law [Agpalo (2004)] A lawyer should give adequate attention, care and time to his cases. This is the reason why a practicing lawyer should accept only so many cases he can handle. [Legarda v. CA, G.R. No. 94457 (1991)] The lawyer’s diligence and dedication to his work and profession not only promote the interest of his client, it likewise help attain the ends of justice by contributing to the proper and speedy administration of cases, bring prestige of the bar and maintain respect to the legal profession [Endaya v. Oca, A.C. 3967 (2003)]. ii. Negligence

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handling the case or in management of litigation and in procedural technique, and he cannot be heard to complain that result might have been different had his lawyer proceeded differently. Exceptions: He is not so bound where the ignorance, incompetence or inexperience of lawyer is so great and error so serious that the client, who has good cause, is prejudiced and denied a day in court [People v. Manzanilla, G.R. No. L-17436 (1922); Alarcon v. CA, G.R. No. 126802 (2000)] EXAMPLES OF LAWYER’S NEGLIGENCE: 1) Failure of counsel to ask for additional time to answer a complaint resulting in a default judgment against his client (Mapua v. Mendoza, G.R. L-19295 (1923)]; 2) Failure to bring suit immediately, as when it was filed when the defendant had already become insolvent and recovery could no longer be had; 3) Failure to ascertain date of receipt from post office of notice of decision resulting in the non-perfection of the appellant’s appeal [Joven-De Jesus v. PNB, G.R. No. L-19299 (1964)] 4) Failure to file briefs within the reglementary period [People v. Cawili, G.R. No. L-30543, (1970)]; 5) Failure to attend a trial without filing a motion for postponement or without requesting either of his two partners in the law office to take his place and appear for the defendants [Gaerlan v. Bernal, G.R. No. L-4039 (1952)]; 6) Failure to appear at pre-trial [Agravante v. Patriarca, G.R. No. L-48324 (1990)];

Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable

If by reason of the lawyer’s negligence, actual loss has been caused to his client, the latter has a cause of action against him for damages. [Callanta] General rule: A client is bound by the attorney’s conduct, negligence and mistake in PAGE 47 OF 85

7) Failure of counsel to notify clients of the scheduled trial which prevented the latter to look for another lawyer to represent them while counsel was in the hospital [Ventura v. Santos, 59 Phil. 123 (1993)]; 8) Failure to appear simply because the client did not go to counsel’s office on the date of the trial as was agreed upon (Alcoriza v. Lumakang, A.M. No. 249 (1978)];

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9) Failure to pay the appellate docket fee after receiving the amount for the purpose [Capulong v. Alino, A.M. No. 381 (1968)] 10) Failure to file a Motion for Reconsideration and to update clients of the adverse result of a case [Orazme v. Oro, A.C. No. 10945, (2016)] 11) Withdrawing from a case without the proper motion and without informing the client [Chang v. Hidalgo, A.C. No. 6934,(2016)] iii. Collaborating Counsel

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iv. Duty to Apprise Client

Rule 18.04. A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable period of time to client’s request for information.

The relationship of lawyer-client being one of confidence, there is ever present the need for the lawyer to inform timely and adequately the client of important developments affecting the client’s case [Carandang v. Obmina, A.C. 7813 (2009)]. Even if the lawyer was honestly and sincerely protecting the interests of his client, he still does not have the right to waive the appeal without the knowledge and consent of his client [Abay v. Montesino, A.C. 5718 (2003)].

Rule 18.01. A lawyer shall not undertake a

legal service which he knows or should know that he is not qualified to tender. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter. WHEN A LAWYER ACCEPTS A CASE, WHETHER FOR A FEE OR NOT, HIS ACCEPTANCE IS AN IMPLIED REPRESENTATION: 1) That he possesses the requisite degree of academic learning, skill and ability necessary in the practice of his profession; 2) That he will exert his best judgment in the prosecution or defense of the litigation entrusted to him; 3) That he will exercise ordinary diligence or that reasonable degree of care and skill demanded of the business he undertakes to do, to protect the client’s interests and take all steps or do all acts necessary thereof [Uy v. Tansinsin, A.C. 8252 (2009)]; and 4) That he will take steps as will adequately safeguard his client’s interests [Islas v. Platon, G.R. No. L-23183 (1924)] Some cases involve specialized fields of law and require special training of which a lawyer may not be knowledgable. In such a case, he should follow this rule [Agpalo (2004)].

The client should not, however, sit idly by. It is also his duty to make proper inquiries from his counsel concerning his case, in keeping with that standard of care which an ordinarily prudent man bestows upon his important business [Agpalo (2004)]. D.6. REPRESENTATION WITH ZEAL WITHIN LEGAL BOUNDS Canon 19. A lawyer shall represent his client with zeal within the bounds of the law. i. Use of Fair and Honest Means

Rule 19.01. A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.

It is the duty of an attorney to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law [Sec. 20(d), Rule 138, RoC] A lawyer should not file or threaten to file any unfounded or baseless criminal case or cases

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against the adversaries of his client designed to secure a leverage to compel adversaries to yield or withdraw their own cases against the lawyer’s client. [Pena v. Aparicio, A.C. No. 7298 (2007)] ii. Client’s Fraud

Rule 19.02. A lawyer who has received

information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court. This rule merely requires the lawyer to terminate his relationship with the client in the event the latter fails or refuses to rectify the fraud. [Agpalo (2004)]

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D.7. ATTORNEY’S FEES

Canon 20. A lawyer shall charge only fair and reasonable fees.

Any counsel worthy of his hire is entitled to be fully recompensed for his services. With his capital consisting solely of his brains and with his skill, acquired at tremendous cost not only in money but in the expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt of the part of the client to escape payment of his fees [Albano v. Caloma, A.C. 528 (1967)]. An attorney is entitled to have and recover from his client no more than a reasonable compensation for his services with a view to: (1) The importance of the subject matter of the controversy;

iii. Procedure in Handling The Case

(2) The extent of the services rendered; and

Rule 19.03. A lawyer shall not allow his client

(3) The professional standing of the attorney.

to dictate the procedure on handling the case.

Within client’s control MATTERS OF SUBSTANCE The cause of action, the claim or demand sued upon, and the subject matter of the litigation are all within the exclusive control of a client. An attorney may not impair, compromise, settle, surrender, or destroy them without his client's consent.

Within counsel’s control MATTERS OF LAW All the proceedings in court to enforce the remedy, to bring the claim, demand, cause of action, or subject matter of the suit to hearing, trial, determination, judgment, and execution, are within the exclusive control of the attorney [Belandres v. Lopez

Sugar Central Mill, G.R. No. L-6869 (1955)].

No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefore unless found by the court to be unconscionable or unreasonable. [Sec. 24, Rule 138, RoC] Subject to the availability of funds, the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such a sym as the court may fix in accordancewith Sec. 24, Rule 138, RoC [Sec. 32, Rule 138, RoC]. The mere fact that an agreement had been reached between attorney and client fixing the amount of the attorney’s fees, does not insulate such agreement from review and modification by the Court where the fees clearly appear to be excessive or unreasonable [Tanhueco v. De Dumo, A.M. No. 1437 (1989)]

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WHEN A LAWYER CANNOT RECOVER THE FULL AMOUNT STIPULATED IN THE CONTRACT: (1) When the services were not performed, and if the lawyer withdrew before the case was finished, he will be allowed only reasonable fees; (2) When there is justified dismissal of an attorney, the contract will be nullified and payment will be on quantum meruit basis; (3) When the stipulated fees unconscionable or unreasonable;

are

(4) When the stipulated fees are in excess of what is expressly provided by law; (5) When the lawyer is guilty of fraud or bad faith in the manner of his employment; (6) When the counsel’s services are worthless because of negligence; (7) When the contract is contrary to laws, morals, and good policies. WHEN THERE IS NO EXPRESS CONTRACT The absence of a formal contract will not negate the payment of attorney’s fees because the contract may be express or implied. In the absence of an express contract, payment of attorney’s fees may be justified by virtue of the innominate contract of facio ut des (I do and you give) which is based on the principle that “no one shall enrich himself at the expense of another” [Corpus v. CA, G.R. No. L-40424 (1980)]

LEGAL AND JUDICIAL ETHICS

1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; 2) Appear as counsel in any criminal case wherein an officer or employee ofthe national or local government is accused of an offense committed in relation to his office. 3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and 4) Use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government. c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, that the officials concerned do not derive monetary compensation therefrom.

NOTE: RA 7160, Section 90. Practice of Profession. a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That Sanggunian members who are also members of the Bar shall not: PAGE 50 OF 85

Rule 20.01. A lawyer shall be guided by the following factors in determining his fees:

(a) The time spent and the extent of the services rendered or required; (b) The novelty and difficulty of the questions involved; (c) The importance of the subject matter; (d) The skill demanded; (e) The probability of losing other employment as a result of acceptance of the proffered case; (f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; (g) The amount involved in the controversy and the benefits resulting to the client from the service; (h) The contingency compensation;

or

certainty

of

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It is the duty of an attorney to accept no compensation in connection with his client’s business except from him or with his knowledge and approval [Sec. 20(e), Rule 138, RoC]

(i) The character of the employment, whether occasional or established; and (j) The professional standing of the lawyer.

A corollary of the fo regoing rule is the principle that whatever a lawyer receives from the opposite party in the service of his client belongs to the client. A lawyer may not claim the fees in the concept of damages awarded by the court in favor the client, the latter and not the former being entitled thereto, except when he and his client have agreed that whatever amount the court may award as attorney's fees would form part of the lawyer's compensation [Agpalo (2004)].

MANNER BY WHICH ATTORNEYS MAY BE PAID (1) A fixed or absolute fee which is payable regardless of the result of the case; (2) A contingent fee that is conditioned upon the securing of a favorable judgment and recovery of money or property and the amount of which may be on a percentage basis; (3) A fixed fee payable per appearance; (4) A fixed fee computed by the number of hours spent;

i. Acceptance Fees

(5) A fixed fee based on a piece of work;

Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client’s cause [Emiliano Court Townhouses Homeowners Association v. Dioneda, A.C. No. 5162 (2003)].

(6) A combination of any of the above stipulated fees.

Rule 20.02. A lawyer shall, in cases of referral,

Failure to render the legal services agreed upon, despite receipt of an acceptance fee, is a clear violation of the CPR [Macarulay v. Seriña, A.C. No. 6591 (2005)].

with the consent of the client, be entitled to a division of fees in proportion to work performed and responsibility assumed.

The referral of a client by a lawyer to another lawyer does not entitle the former to a commission or to a portion of the attorney’s fees. It is only when, in addition to the referral, he performs legal service or assumes responsibility in the case that he will be entitled to a fee [Agpalo (2004)]

ii. Contingency Fee Arrangements A distinction should be made between a champertous contract and a contingent contract with respect to attorney’s fees:

Rule 20.03. A lawyer shall not, without the full

Champertous Contract

Contingent Contract

Ratio: The rule is designed to secure the lawyer’s fidelity to the client’s cause and to prevent that situation in which receipt by him of a rebate or commission from another in connection with the client’s cause may interfere with the full discharge of his duty to his client [Agpalo (2004)].

A champertous contract is one where the lawyer stipulates with his client that he will bear all the expenses for the prosecution of the case, the recovery of things or property being claimed, and the latter pays only upon successful litigation.

A contingent contract is an agreement in which the lawyer’s fee, usually a fixed percentage of what may be recovered in the action, is made to depend upon the success in the effort to enforce or defend the client’s right. The lawyer does

knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.

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This contract is void for being against public policy

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LEGAL AND JUDICIAL ETHICS

(2) Written notice thereof to be delivered to his client and to the adverse party.

not undertake to shoulder the expenses of litigation.

From then on, he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements [Sec. 37, Rule 138, RoC]

It is a valid agreement. Contingent fee contracts are subject to the supervision and close scrutiny of the court in order that clients may be protected from unjust charges. A much higher compensation is allowed as contingent fees because of the risk that the lawyer may get nothing if the suit fails [Masmud v. NLRC, G.R. 183385 (2009)].

REQUISITES:

iii. Attorney’s Liens Retaining lien An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession. Thus: (1) He may retain the same until his lawful fees and disbursements have been paid; (2) May apply such funds to the satisfaction thereof. [Sec. 37, Rule 138, RoC]

(1) Attorney-client relationship; (2) The attorney has rendered services; (3) A money judgment favorable to the client has been secured in the action; and (4) The attorney has a claim for attorney’s fees or advances statement of his claim has been recorded in the case with notice served upon the client and adverse party.

Retaining lien

Charging lien Nature

Passive lien. It cannot be actively enforced. It is a general lien.

Active lien. It can be enforced by execution. It is a special lien.

Basis Requisites (RPC): (1) Attorney-client relationship; (2) Lawful possession by lawyer of the client’s funds, documents and papers in his professional capacity; and

Lawful possession of funds, papers, documents, property belonging to client

(3) Unsatisfied claim for attorney’s fees or disbursements. Charging lien He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client. This lien exists from and after the time when he shall have caused: (1) A statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution; and

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Securing of a favorable money judgment for client

Coverage Covers only funds, papers, documents, and property in the lawful possession of the attorney by reason of his professional employment

Covers all judgments for the payment of money and executions issued in pursuance of such judgment

Effectivity As soon as the lawyer gets possession of the funds, papers,

As soon as the claim for attorney’s fees had been entered

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documents, property

QUANTUM MERUIT

into the records of the case

Means “as much as a lawyer deserves.”

Applicability May be exercised before judgment or execution, or regardless thereof

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Essential requisite: Acceptance of the benefits by one sought to be charged for services rendered under circumstances as reasonably to notify him that lawyer expects compensation.

Generally, it is exercisable only when the attorney had already secured a favorable judgment for his client

WHEN AUTHORIZED: (1) The agreement as to counsel fees is invalid for some reason other than the illegality of the object of performance;

Notice Client need not be notified to make it effective

Client and adverse party need to notified to make it effective

(2) There is no express contract for attorney’s fees agreed upon between the lawyer and the client; (3) When although there is a formal contract of attorney’s fees, the stipulated fees are found unconscionable or unreasonable by the court;

iv. Fees and Controversies with Clients

Rule 20.04. A lawyer shall avoid controversies

(4) When the contract for attorney’s fees is void due to purely formal matters or defects of execution;

with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.

A lawyer should avoid controversies with clients concerning compensation so far as shall be compatible with self-respect and with his right to receive a reasonable recompense for his services, and he should resort to law suits with clients only to prevent injustice, imposition or fraud. Lawyers thus seldom, if ever, file judicial actions for the recovery of their fees unless righteous and well founded and unless forced by the client's intolerable attitude because such lawsuits cannot fail to create the impression, however, wrong it may be, that those instituting them are mercenaries [Agpalo (2004)]. JUDICIAL ACTIONS ATTORNEY’S FEES:

TO

(5) When the counsel, for justifiable cause, was not able to finish the case to its conclusion; (6) When lawyer and client disregard the contract of attorney’s fees; (7) When there is a contract, but no stipulation as to attorney’s fees.

QUANTUM MERUIT GUIDELINES

RECOVER

(1) An appropriate motion or petition as an incident in the main action where he rendered legal services; (2) A separate civil action for collection of attorney’s fees.

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(1) Time spent and extent of the services rendered. A lawyer is justified in fixing higher fees when the case is so complicated and requires more time and efforts to finish it. (2) Nature and importance of subject matter. The more important the subject matter or the bigger value of the interest or property in litigation, the higher is the attorney’s fee. (3) Novelty and difficulty of questions involved. When the questions in a case are novel and difficult, greater efforts, deeper study, and research are bound to burn the lawyer’s time and stamina

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considering that there are no local precedents to rely upon.

not to the lawyer but to the client – unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof [Traders Royal Bank

(4) Skill demanded of the lawyer. The totality of the lawyer’s experience provides him the skill and competence admired in lawyers. (5) Loss of opportunity for other employment on the part of the lawyer who accepts the retainer. It is only but fair that a client should compensate his lawyer for being eprived of the chance to earn legal fees from others by reason of his employment as his counsel. (6) Results secured. The importance to a client of his lawyer’s services depends upon the successful outcome of his litigation. (7) Whether the fee is contingent. (8) Capacity of client to pay. A determination of all these factors would indispensably require nothing less than a fullblown trial where private respondent can adduce evidence to establish its right to lawful attorney's fees and for petitioner to oppose or refute the same [Metrobank v. CA, G.R. No. 86100 (1990)] The above rules apply in the case of a counsel de parte. A counsel de oficio may not demand from the accused attorney’s fees even if he wins the case. However, subject to availability of funds, the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix. v. Concepts of Attorney’s Fees

Ordinary concept

Extraordinary concept

An attorney’s fee is the reasonable compensation paid to a lawyer for the legal services he has rendered to a client. Its basis of this compensation is the fact of employment by the client.

An attorney’s fee is an indemnity for damages ordered by the court to be paid by the losing party to the prevailing party in litigation. The basis of this is any of the cases authorized by law and is payable

Employees UnionIndependent v. NLRC, G.R. No. 120592 (1997)].

D.8. PRESERVATION OF CLIENT’S CONFIDENCES Canon 21. A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relation is terminated. Ratio: (1) Unless the client knows that his attorney cannot be compelled to reveal what is told to him, he will suppress what he thinks to be unfavorable and the advice which follows will be useless if not misleading; (2) To encourage a client to make full disclosure to his attorney and to place unrestricted confidence in him in matters affecting his rights or obligations [Agpalo (2004)]. It is the duty of an attorney to maintain inviolate the confidence, and at every peril to himself to preserve, the secrets of his client and to accept no compensation in connection with his client’s business except from him or with his knowledge and approval [Sec. 20(e), Rule 138, RoC]. IMPOSITION OF CRIMINAL LIABILITY 1) Upon any lawyer who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, reveals any of the secrets of the latter learned by him in his professional capacity.

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2) Upon a lawyer who, having undertaken the defense of a client or having received confidential information from said client in a case, undertakes the defense of the opposing party in the same case, without the consent of his first client. [Art. 209, RPC] The protection given to the client is perpetual and does not cease with the termination of the litigation, nor is it affected by the party’s ceasing to employ the attorney and retaining another, or by any other change of relation between them. It even survives the death of the client [Genato v. Silapan, supra.]. i. Prohibited Disclosures and Use

Rule 21.02. A lawyer shall not, to the

disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.

LEGAL AND JUDICIAL ETHICS

services are covered by privileged communication. It is the duty of lawyer to ensure that this is being followed (e.g., execution of confidentiality agreements) [Agpalo (2004)]. Ratio: The prohibition against a lawyer from divulging the confidences and secrets of his clients will become futile exercise if his clerical aids are given liberty to do what is prohibited of the lawyer.

Rule 21.06. A lawyer shall avoid indiscreet conversation about a client’s affairs even with members of his family.

A lawyer must also preserve the confidences and secrets of his clients outside the law office, including his home. He should avoid committing calculated indiscretion, that is, accidental revelation of secrets obtained in his professional employment [Agpalo (2004)].

Rule 21.07. A lawyer shall not reveal that he

This strikes deeply against the attorney-client relationship [Agpalo (2004)].

has been consulted about a particular case except to avoid possible conflict of interest.

Rule 21.03. A lawyer shall not, without the

Cf:

written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose. The work and product of a lawyer, such as his effort, research, and thought, and the records of his client, contained in his files are privileged matters. Neither the lawyer nor, after his death, his heir or legal representative may properly disclose the contents of such file cabinet without client’s consent [Agpalo (2004)].

Rule 15.01. A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client.

Rule 14.03. A lawyer may not refuse to accept representation of an indigent client unless:

(b) He labors under a conflict of interest between him and the prospective client or between a present client and the prospective client.

Rule 21.05. A lawyer shall adopt such

measures as may be required to prevent those whose services are utilized by him from disclosing or using confidences or secrets of the client. The client’s secrets which clerical aids of lawyers learn of in the performance of their

THE PRIVILEGED COMMUNICATION RULE APPLIES EVEN TO PROSPECTIVE CLIENTS The disclosure and the lawyer’s opinion thereon create an attorney-client relationship, even though the lawyer does not eventually

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accept the employment or the prospective client did not thereafter actually engage the lawyer. By the consultation, the lawyer already learned of the secrets of prospective client. This rule, of course, is subject to exception of representation of conflicting interests [ Agpalo (2004)].

LEGAL AND JUDICIAL ETHICS

An attorney-client relationship may be terminated by the client, the lawyer, or by the court for reasons beyond the parties’ control. The termination entails certain duties on the part of the client and his lawyer. [Agpalo (2004)]. CAUSES OF TERMINATION OF ATTORNEYCLIENT RELATIONSHIP

ii. Disclosure, When Allowed

Rule 21.01. A lawyer shall not reveal the

(1) Withdrawal of the lawyer;

confidences or secrets of his client except:

(2) Death of the lawyer;

(a) When authorized by the client after acquainting him of the consequences of the disclosure;

(3) Disbarment or suspension of the lawyer from the practice of law;

(b) When required by law;

(4) Declaration of presumptive death of the lawyer;

(c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.

(5) Conviction of a crime and imprisonment of the lawyer; (6) Discharge or dismissal of the lawyer by the client;

Rule 21.01(a) refers to a waiver by the client. Since the attorney-client privilege against disclosure of the client's confidence is intended primarily for the client's protection, only the client as a rule can waive the privilege.

(7) Appointment or election of a lawyer to a government position which prohibits private practice of law;

Rule 21.01 (b) and (c) are for the protection of the attorney’s rights. The privileged relation cannot be used as a shield against wrongdoing nor can it be employed as an excuse to deny a lawyer the right to protect himself against abuse by the client or false charges by third persons [Agpalo (2004)].

(9) Intervening incapacity or incompetence of the client during pendency of case;

Rule 21.04. A lawyer may disclose the affairs

(8) Death of the client;

(10) Full termination of the case. General rule: The client has the right to discharge his attorney at any time with or without just cause or even against his consent. Exceptions:

of a client of the firm to partners or associates thereof unless prohibited by the client.

(1) The client cannot deprive his counsel of right to be paid services if the dismissal is without cause.

The professional employment of a law firm is equivalent to the retainer of the members thereof even though only one of them is consulted; conversely, the employment of one member of a law firm is generally considered as employment of the law firm [Agpalo (2004)]. D.9. WITHDRAWAL OF SERVICES Canon 22. A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.

(2) The client cannot discharge his counsel as an excuse to secure repeated extensions of time. (3) Notice of discharge is required for both the court and the adverse party [Agpalo (2004)]. A client may at any time dismiss his attorney or substitute another in his place, but if the contract between the client and the attorney has been reduced to writing and the dismissal was without justifiable cause, he shal be

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have appeared for the party [Villasis v. CA, G.R. No. L-34369 (1974)]

entitled to recover from the client the full compensation stipulated in the contract [Sec. 26, Rule 138, RoC].

Although a lawyer may withdraw his services when the client deliberately fails to pay the fees for the services, withdrawal is unjustified if client did not deliberately fail to pay [Montano v. IBP, A.C. No. 4215 (2001)]

Rule 22.01. A lawyer may withdraw his services in any of the following cases:

(a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling;

Rule 22.02. A lawyer who withdraws or is

discharged shall, subject to a retaining lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.

(b) When the client insists that the lawyer pursue conduct violative of these canons and rules; (c) When his inability to work with cocounsel will not promote the best interest of the client;

REQUIREMENTS OF A VALID SUBSTITUTION OF COUNSEL

(d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively;

(1) The filing of a written application for substitution;

(e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement;

(2) The client’s written consent;

(f) When the lawyer is elected or appointed to public office; and

(4) If the above written consent cannpot be secured, a proof of service of notice of such motion on the attorney to be substituted [Agpalo (2004)].

(3) The written consent of the attorney to be substituted

(g) Other similar cases. A lawyer may retire at any time from any action or special proceeding: (1) With the written consent of his client filed in court and copy thereof served upon the adverse party; or (2) Without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. [Sec. 26, Rule 138, RoC] General rule: The withdrawal in writing, with the client’s conformity, does not require the approval of the court to be effective. Exception: If no new counsel has entered his appearance, the court may, in order to prevent a denial of a party’s right to the assistance of counsel require that the lawyer’s withdrawal be held in abeyance until another lawyer shall PAGE 57 OF 85

At the discretion of the court, a lawyer, who has been dismissed by a client, is allowed to intervene in a case in order to protect the client’s rights [Obando v. Figueras, G.R. No. 134854 (2000)] The offensive attitude of a client is not an excuse to just disappear and withdraw from a case without notice to the court and to the client, especially when attorney’s fees have already been paid [Chang v. Hidalgo, A.C. 6934 (2016)].

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III. Suspension, Disbarment, and Discipline of Lawyers (Rule 139-B, Rules of Court)

A.2. PRESCRIPTION

A. NATURE AND CHARACTERISTICS OF DISCIPLINARY ACTIONS AGAINST LAWYERS A.1. SUI GENERIS • Disciplinary proceedings are sui generis, i.e. they belong to a class of their own •

They are neither purely civil nor purely criminal; they do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of its officers.

•

They may be initiated by the Court motu proprio. The Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice in the exercise of its disciplinary powers.

•

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Public interest is the primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such [In Re: Almacen supra., Itong v. Florendo, A.C. 4428 (2011)].

In Frias v. Bautista-Lozada, A.C. 6656 (2006), the Supreme Court, citing Calo v. Degamo, A.C. 516 (1967) and Heck v. Santos, A.M. RTJ-011657 (2004), declared that the defense of prescription does not lie in administrative proceedings gainst lawyers for an administrative complaint against a member of the bar does not prescribe. Thus, Sec. 1, Rule VIII of the Rules of Procedure of the Commission on Bar Discipline, which provided for a prescription period of 2 years from the date of the professional misconduct, was struck down for being ultra vires. However, in Isenhardt v. Real, A.C. 8254 (2012), the Supreme Court ruled that “the rule [Sec. 1, Rule VIII, Rules of Procedure of the Commission on Bar Discipline] should be construed to mean two years from the date of discovery of the professional misconduct.” A.3. OTHER CHARACTERISTICS (1) Investigation is not interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same [par. 2, Sec. 5, Rule 139-B, RoC]. (2) Proceedings against attorneys shall be private and confidential. However, the final order of the Supreme Court shall be published like its decisions in other cases. [Sec. 18, Rule 139-B, RoC]

Any interested person or the court motu proprio may initiate disciplinary proceedings. The right to institute disbarment proceedings is not confined to clients nor is it necessary that the person complaining suffered injury from the alleged wrongdoing. Disbarment proceedings are matters of public interest and the only basis for the judgment is the proof or failure of proof of the charges [Figueras v. Jimenezsupra.].

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(a) PURPOSE 1.

To enable the Court to make its investigations free from any extraneous influence or interference;

2. To protect the personal and professional reputation of attorneys and judges from the baseless charges of disgruntled, vindictive, and irresponsible clients and litigants; 3. To deter the press from publishing administrative cases or portions thereof without authority [Saludo, Jr. v. CA, G.R. 121404 (2006)].

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(b) This is a privilege/right which may be waived by the very lawyer in whom and for the protection of whose personal and professional reputation it is vested, pursuant to the general principle that rights may be waived unless the waiver is contrary to public policy, among others” [Villalon v. IAC, G.R. 73751 (1986)]. (3) Laws dealing with double jeopardy or prescription or with procedure like verification of pleadings and prejudicial questions have no application to disbarment proceedings [Pimentel, Jr. v. Llorente, A.C. 4680 (2000)]. (4) Because the proceedings are distinct from and proceed independently of civil or criminal cases,whatever has been decided in the disbarment case cannot be a source of right that may be enforced in another action. At best, such judgment may only be given weight when introduced as evidence, but in no case does it bind the court in the civil action [Esquivias v. CA, G.R. 119714 (1997)]. (5) The disbarment proceeding does not violate the due process clause. The proceeding itself, when instituted in proper cases, is due process of law [In Re: Montagne, G.R. 1107 (1904)]. (6) In a disbarment proceeding, it is immaterial that the complainant is in pari delicto because the proceeding is not to grant relief to the complainant, but to purge the law profession of unworthy members, to protect the public and the courts [Mortel v. Aspiras, G.R. L-9152 (1956)]. (7) The rule in criminal cases that the penalty cannot be imposed in the alternative applies in administrative disciplinary cases, which also involve punitive sanctions [Navarro v. Meneses III, CBD A.C. 313 (1998)]. (8) Monetary claims cannot be granted except restitution and return of monies and properties of the client given in the course of the lawyer-client relationship

LEGAL AND JUDICIAL ETHICS

B. GROUNDS Sec. 27, Rule 138, RoC. Attorneys removed or suspended by Supreme Court on what grounds. — A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a wilful disobedience of any lawful order of a superior court, or for corruptly or willful appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. Broadly speaking, the grounds for discipline of a lawyer consist of those acts of misconduct committed before and after his admission to the practice [Agpalo (2004)]. GROUNDS FOR SUSPENSION:

DISBARMENT

(1) Deceit, malpractice misconduct in office;

or

other

OR gross

(2) Grossly immoral conduct; (3) Conviction of a crime involving moral turpitude; (4) Any violation of the lawyer’s oath; (5) Willful disobedience of any lawful order of a superior court; (6) Corruptly or willfully appearing as an attorney without authority so to do Deceit is false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury [Alcantara v. CA, G.R. 147259 (2003)]. Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. It consists of a failure of an

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attorney to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damage, it gives rise to an action in tort [Tan Tek Beng v. David, A.C. 1261 (1983)].Gross misconduct is any inexcusable, shameful or flagrant unlawful conduct on the part of a person concerned in the administration of justice which is prejudicial to the rights of the parties or to the right determination of the cause. Such conduct is generally motivated by a premeditated, obstinate or intentional purpose [Yap v. Inopiquez, Jr., A.M. RTJ-031760 (2003)]. Immorality connotes conduct that shows indifference to the moral norms of society and the opinion of good and respectable members of the community. The conduct must be “grossly immoral” (i.e., so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree) to warrant disciplinary action [Ui v. Bonifacio, A.C. 3319 (2000)]. Moral turpitude involves an act of baseness, vileness, or depravity in the private duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty or good morals [Barrios v. Martinez, A.C. 4585 (2004)].

LEGAL AND JUDICIAL ETHICS

latter learned by him professional capacity; or

in

his

(b) Having undertaken the defense of a client or having received confidential information from said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client. The enumeration is not to be taken as a limitation to the general power of courts to suspend or disbar a lawyer. The inherent powers of the court over its officers cannot be restricted [Quingwa v. Puno, A.C. 389 (1967)]. Misconduct in private capacity General rule: The Court will not assume jurisdiction to discipline one of its members for misconduct alleged to be committed in his private capacity Exception: An attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which show him to be unfit for the office and unworthy of the privileges which his licence and the law confer upon him [Piatt v Abordo, supra.].

C. PROCEEDINGS PROCEDURE FOR DISBARMENT

OTHER STATUTORY GROUNDS (1) Purchase by a lawyer of his client’s property in litigation [Art. 1491, Civil Code] constitutes a breach of professional ethics for which a disciplinary action may be brought against him [Bautista v. Gonzales, A.M. 1625 (1990)]. (2) Under Art. 209, RPC, administrative and criminal sanctions may be imposed upon any attorney-at-law or solicitor who: (a) By malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the PAGE 60 OF 85

Institution either by: (a) The Supreme Court, motu proprio, or (b) The IBP Board of Governors, motu proprio or upon referral by the Supreme Court or by a Chapter Board of Officers or (c) Upon verified complaint by any person

6 copies of the verified complaint shall be filed with the Secretary of the IBP or Secretary of any of its chapter and shall be forwarded to the IBP Board of Governors.

Investigation investigators.

by

the

National

Grievance

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Submission of investigative report to the IBP Board of Governors.

Board of Governors decides within 30 days and transmits decision to the SC within 10 days from resolution

LEGAL AND JUDICIAL ETHICS

or suspension if the basis of such action includes any of the acts hereinabove enumerated [In re: Maquera, B.M. 793 (2004)]. The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension. [Sec. 27, Rule 138, RoC as amended by Supreme Court Resolution dated Feb 13, 1992]

E. DISCIPLINE GOVERNMENT

SC renders final decision for disbarment/ suspension/ dismissal.

OF

LAWYERS

IN

General rule: A lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the discharge of his duties as a government official.

All charges against the following shall be filed with the Supreme Court: (1) Justices of the Court of Appeals;

Exception: If that misconduct as a government official is of such a character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such ground

(2) Justices of the Sandiganbayan; (3) Judges of the Court of Tax Appeals; and (4) Judges of lower courts [Sec. 1 (2), Rule 139-B, RoC].

In People v. Castaneda, G.R. 208290 (2013) the lawyers representing the offices under the executive branch were reminded that they still remain as officers of the court from whom a high sense of competence and fervor is expected. The Court reminded the lawyers in the government that the canons embodied in the CPR equally apply to lawyers in government service in the discharge of their official tasks. They should exert every effort and consider it their duty to assist in the speedy and efficient administration of justice.

Charges filed against justices and judges before the IBP shall immediately be forwarded to the Supreme Court for disposition and adjudication, including those filed prior to their appointment in the Judiciary [Sec. 1 (2), Rule 139-B]. In BAR MATTER N0. 1645 (RE: AMENDMENT OF RULE 139-B), dated October 13, 2015, the Supreme Court issued new rules governing administrative disciplinary cases against lawyers. Under the new rules, investigation by the Solicitor General is no longer required. Only the Supreme Court can dismiss cases against lawyers. The provision in the old Rule 139-B, of the Rules of Court that the Board of Governors can dismiss cases has been repealed by amendment.

F. QUANTUM OF PROOF The proof required is clear, convincing and satisfactory evidence.

D. DISCIPLINE OF FILIPINO LAWYERS PRACTICING ABROAD

Burden of Proof and Presumption of Innocence The burden of proof in disbarment and suspension proceedings always rests on the shoulders of the complainant. The Court exercises its disciplinary power only if the complainant establishes the complaint by

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clearly preponderant evidence that warrants the imposition of the harsh penalty. As a rule, an attorney enjoys the legal presumption that he is innocent of the charges made against him until the contrary is proved. An attorney is further presumed as an officer of the Court to have performed his duties in accordance with his oath [Joven and Reynaldo C. Rasing v. Cruz and Magsalin, A.C. 7686 (2013)].

G. DISCIPLINARY MEASURES (1) Warning, an act or fact of putting one on his guard against an impending danger, evil consequences or penalties. (2) Admonition, a gentle or friendly reproof, mild rebuke, warning or reminder, counseling, on a fault, error or oversight; an expression of authoritative advice. (3) Reprimand, a public and formal censure or severe reproof, administered to a person in fault by his superior officer or a body to which he be-longs. It is imposed on a minor infraction of the lawyer’s duty to the court or client (4) Suspension, a temporary withholding of a lawyer’s right to practice his profession as a lawyer for: (a) A definite period; or (b) An indefinite period, which amounts to qualified disbarment, in which case, lawyer determines for himself for how long or how short his suspension shall last by proving to court that he is once again fit to resume practice of law. (5) Censure, an official reprimand. (6) Disbarment, the act of the Philippine Supreme Court in withdrawing from an attorney the privilege to practice law and striking out the name of the lawyer from the roll of attorneys. (7) Interim suspension, the temporary suspension of a lawyer from the practice of law pending imposition of final discipline. It includes: (a) Suspension upon conviction of a serious crime.

LEGAL AND JUDICIAL ETHICS

(b) Suspension when the lawyer’s continuing conduct is likely to cause immediate and serious injury to a client or public. (8) Probation, a sanction that allows a lawyer to practice law under specified conditions. OTHER SANCTIONS AND REMEDIES (1) Restitution; (2) Assessment of costs; (3) Limitation upon practice; (4) Appointment of a receiver; (5) Requirement that a lawyer take the bar examination or professional responsibility examination; (6) Requirement that a lawyer attend continuing education courses; (7) Other requirements that the Supreme Court or disciplinary board deems consistent with the purposes of sanctions. MITIGATING CIRCUMSTANCES (1) Absence of a prior disciplinary record; (2) Absence of a dishonest or selfish motive; (3) Personal or emotional problems; (4) Timely good faith effort to make restitution or to rectify consequences of misconduct; (5) Full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) Inexperience in the practice of law; (7) Character or reputation; (8) Physical or mental disability or impairment; (9) Delay in disciplinary proceedings; (10) Interim rehabilitation; (11) Imposition of other penalties or sanctions; (12) Remorse; (13) Remoteness of prior offenses; (14) Others: (a) Good Faith; (b) Want of intention to commit a wrong; (c) Lack of material damage to the complaining witness; (d) Desistance of complainant;

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(e) Error in judgment; (f) Honest and efficient service in various government positions; (g) Ready admission of the infraction coupled with explanation and plea for forgiveness; (h) Clean record of professional service in the past; (i) Rendered professional services out of pure generosity; (j) Punished in another capacity for a misconduct for which he now faces a disbarment proceeding; (k) Old Age & long membership (may also be an aggravation de-pending on the circumstance); AGGRAVATING CIRCUMSTANCES: (1) Prior disciplinary offenses; (2) Dishonest or selfish motive; (3) A pattern of misconduct; (4) Multiple offenses; (5) Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (6) Submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (7) Refusal to acknowledge wrongful nature of conduct; (8) Vulnerability of victim; (9) Substantial experience in the practice of law; (10) Indifference to making restitution. [See IBP Guidelines 9.22] (11) Others: (a) Abuse of authority or of attorney-client relationship; (b) Sexual intercourse with a relative; (c) Making the institution of marriage a mockery; (d) Charge of gross immorality; (e) Previous punishment as member of the bar; (f) Defraud upon the government; (g) Use of knowledge or information, acquired in the course of a previous

LEGAL AND JUDICIAL ETHICS

professional employment, against a former client.

H. EFFECT OF EXECUTIVE PARDON (1) Conditional pardon: disbarment case will not be dismissed on such basis (2) Absolute pardon granted before conviction: disbarment case will be dismissed (3) Absolute pardon granted before conviction: No automatic reinstatement to the bar. It must be shown by evidence aside from absolute pardon that he is now a person of good moral character and fit and proper person to practice law.

I. EFFECT AGREEMENTS

OF

COMPROMISE

The compromise agreement between the complainant and the lawyer, or the fact that the complainant already forgave the latter, does not necessarily warrant the dismissal of the administrative case. Exception: When as a consequence of the withdrawal or desistance, no evidence is adduced to prove the charges [Banaag v. Salindong, A.C. 1563 (1984)].

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IV. Readmission to the Bar

(6) Applicant’s appreciation of significance of his dereliction and his assurance that he now possesses the requisite probity and integrity;

A. LAWYERS SUSPENDED

(7) Favorable endorsement of the IBP and local government officials and citizens of his community, pleas of his loved ones [Yap Tan v. Sabandal, B.M. 44 (1989)];

WHO

HAVE

BEEN

Guidelines in the lifting an order of suspension (1) Upon expiration of the period of suspension, respondent shall file a sworn statement with the court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension; (2) Copies of the sworn statement furnished to the local chapter of the IBP and to the executive judge of the courts where the respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; (3) The sworn statement shall be considered as proof of respondent’s compliance with the order of suspension [Maniago v. De Dios, A.C. 7472 (2010)].

B. LAWYERS DISBARRED

WHO

HAVE

BEEN

The sole objective is to determine whether or not the applicant has satisfied and convinced the court by positive evidence that the effort he has made toward the rehabilitation of his characer has been successful [In re: Rusuina, A.C. 270 (1974)]. Guidelines in resolving requests for judicial clemency of disbarred lawyers (1) There must be proof of remorse and reformation. These include testimonials of credible institutions and personalities; (2) Sufficient time must have lapsed from the imposition of the penalty to ensure a period of reformation; (3) The age of the person asking for clemency must show that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself;

Considerations for Reinstatement

(4) There must be a showing of promise (e.g., intellectual aptitude, contribution to legal scholarship), and potential for public service;

(1) The applicant’s character and standing prior to disbarment;

(5) Other relevant factors to justify clemency [Re: Letter of Judge Diaz, A.M. 07-7-17-SC (2007)].

(2) The nature or character of the misconduct for which he is disbarred; (3) His conduct subsequent to disbarment [Cui v. Cui, G.R. L-18727 (1964)]; (4) His efficient government service [In re: Adriatico, G.R. L-2532 (1910)]; (5) The time that has elapsed between disbarment and the application for reinstatement and the circumstances that he has been sufficiently punished and disciplined [Prudential Bank v. Benjamin Grecia, A.C. 2756 (1986)];

The quantum of evidence necessary for reinstatement is the same as that for admission to the bar, except that the court, when circumstances so warrant, may require an applicant to present additional proof of his qualifications [Cui v. Cui, supra.]. The court, in reinstating a lawyer, may impose certain conditions on his re-admission [Agpalo (2004)].

C. LAWYERS REPATRIATED

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WHO

HAVE

BEEN

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Lawyers who reacquire their Philippine citizenship should apply to the Supreme Court for license or permit to practice their profession. [Sec. 5(4), RA 9225] See also: B.1. CITIZENSHIP under II. Practice of Law above.

LEGAL AND JUDICIAL ETHICS

V. Mandatory Continuing Legal Education (MCLE) A. PURPOSE Continuing legal education is required of members of the IBP to: (1) Ensure that throughout their career, they keep abreast with law and jurisprudence; (2) Maintain the ethics of the profession; and (3) Enhance the standards of the practice of law [Sec. 1, Rule 1, B.M. 850]

B. REQUIREMENTS Members of the IBP shall complete, every three years, at least 36 hours of continuing legal education activities approved by the MCLE Committee. Of the 36 hours:

Subject Legal Ethics

6 hours

Trial and Pre-trial Skills

4 hours

Alternative Dispute Resolution

5 hours

Updates on substantive and procedural laws and Jurisprudence

9 hours

International law and International Conventions

2 hours

Legal Writing and Oral Advocacy

4 hours

Other MCLE prescribed subjects

6 hours

[Sec. 2, Rule 2, B.M. 850]

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PARTICIPATORY LEGAL EDUCATION [SEC. 2, RULE 5, B.M. 850]

after the end of the previous compliance period [Sec. 1, Rule 3, B.M. 850].

(1) Attending approved education activities like seminars, conferences, conventions, symposia, in-house education programs, workshops, dialogues or round table discussion;

For those admitted or readmitted after the establishment of the program, they will be permanently assigned to the appropriate compliance group based on their chapter membership on the date of admission or readmission.

(2) Speaking or lecturing, or acting as assigned panelist, reactor, commentator, resource speaker, moderator, coordinator or facilitator in approved education activities; (3) Teaching in a law school or lecturing in a bar review class;

The initial compliance period after admission or readmission shall begin on the first day of the month of admission or readmission and shall end on the same day as that of all other members in the same compliance group. However:

NON-PARTICIPATORY LEGAL EDUCATION [SEC. 3, RULE 5, B.M. 850]

(1) Where 4 months or less remain of the initial compliance period after admission or readmission, the member is not required to comply with the program requirement for the initial compliance;

(1) Preparing, as an author or co-author, written materials published or accepted for publication, e.g., in the form of an article, chapter, book, or book review which contribute to the legal education of the author member, which were not prepared in the ordinary course of the member’s practice or employment;

(2) Where more than 4 months remain of the initial compliance period after admission or readmission, the member shall be required to complete a number of hours of approved continuing legal education activities equal to the number of months remaining in the compliance period in which the member is admitted or readmitted. Such member shall be required to complete a number of hours of education in legal ethics in proportion to the number of months remaining in the compliance period. Fractions of hours shall be rounded up to the next whole number [Sec. 3, Rule 3, BM 850].

(2) Editing a law book, law journal or legal newsletter. Other activities, such as rendering mandatory legal aid services pursuant to Sec. 8, B.M. 2012, may be credited as MCLE activities.

C. COMPLIANCE The IBP members covered by the requirement are divided into three compliance groups: (1) Compliance Group 1 consists of members in the National Capital Region (NCR) or Metro Manila; (2) Compliance Group 2 consists members in Luzon outside NCR; and (3) Compliance Group 3 consists of members in Visayas and Mindanao [Sec. 2, Rule 3, B.M. 850]. The initial compliance period shall begin not later than 3 months from the constitution of the MCLE Committee. The compliance period shall be for 36 months and shall begin the day

D. EXEMPTIONS EXEMPTED MEMBERS FROM THE MCLE (1)

The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executives Departments;

(2)

Senators and Members of the House of Representatives;

(3)

The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court

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lawyers covered by the Philippine Judicial Academy program of continuing judicial education; (4)

The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice;

(5)

The Solicitor General and the Assistant Solicitor General;

(6)

The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel;

(7)

The Chairmen and Members of the Constitutional Commissions;

(8)

The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman;

(9)

Heads of government agencies exercising quasi-judicial functions;

(10)

Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten years accredited law schools;

(11)

The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lectures of the Philippine Judicial Academy;

(12)

Governors and Mayors.

(13)

Those who are not in law practice, private or public; and

(14)

Those who have retired from law practice with the approval of the IBP Board of Governors [Sec. 1 and 2, Rule 7, B.M. 850]

A member may file a verified request setting forth good cause for exemption (e.g., physical disability, illness, post graduate study abroad, proven expertise in law) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with a procedure to be established by the MCLE Committee. [Sec. 3, Rule 7, B.M. 850] When a member ceases to be exempt, the compliance period begins on the first day of the month in which he ceases to be exempt and shall end on the same day as that of all PAGE 67 OF 85

LEGAL AND JUDICIAL ETHICS

other members in the same Compliance Group. [Sec. 4, Rule 7, B.M. 850] Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents [Sec. 5, Rule 7, B.M. 850].

E. SANCTIONS (1) A member who, for whatever reason, is in non-compliance at the end of the compliance period shall pay a noncompliance fee. (2) Any member who fails to satisfactorily comply shall be listed as a delinquent member by the IBP Board of Governors upon the recommendation of the MCLE Committee, in which case, Rule 139-A, Rules of Court, governing the IBP, shall apply [Sec. 1 and 2, Rule 13, B.M. 850] (a) Membership fee shall continue to accrue at the active rate against a member during the period he/she is listed as a delinquent member [Sec. 3, Rule 13, B.M. 850]. Under B.M. 1922 (2008), practicing members of the bar are required to indicate in all pleadings filed before the courts or quasijudicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period. This has been amended, pursuant to B.M. 850, as amended (Dated Feb. 15, 2015. Effective

Mar. 1, 2015):

“xxx The Court Resolved to REQUIRE all members of the IBP to file a written entry of appearance indicating their MCLE exemption or compliance number for the current or immediately preceding compliance period and date of issuance thereof before appearing as counsel or engaging in oral argument in open court or before a quasi-judicial body. However, counsels who affixed their signatures in their pleadings and indicated their MCLE exemption or compliance number in their pleadings need not file a separate entry of appearance. Henceforth, all counsels,

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including partners of law firms whose names appear in the said pleadings, shall also indicate their MCLE exemption or compliance number.”

(2) Lawyers who by law are not allowed to appear in court; (3) Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations and peoples’ organizations, who by the nature of their work already render free legal aid to indigent and pauper litigants; and

Pursuant to Supreme Court Resolution dated January 14, 2014, the phrase “failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records” in B.M. 1922 (2008) is repealed and amended to read, “failure to disclose the required information would subject the counsel to appropriate penalty and disciplinary action.”

F. BAR MATTER 2012: THE RULE ON MANDATORY LEGAL AID SERVICE (2009) Purpose To enhance the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them. Mandatory free legal service by members of the bar and their active support thereof will aid the efficient and effective administration of justice especially in cases involving indigent and pauper litigants [Sec. 2] Scope The rule governs the mandatory requirement for practicing lawyers to render free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed. It shall also govern the duty of other members of the legal profession to support the legal aid program of the IBP [Sec. 3]. Practicing lawyers Members of the Philippine Bar who appear for and in behalf of parties in courts of law and quasi-judicial agencies, excluding the following: (1) Government employees and incumbent elective officials not allowed by law to practice;

(4) Lawyers do not appear for and in behalf of parties in courts of law and quasijudicial agencies [Sec. 4(a)]. INDIGENT AND PAUPER LITIGANTS (1) Those whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee; and (2) Those who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300,000.00) pesos, pursuant to Sec. 19, Rule 141, RoC [Sec. 4(b)] Requirements for every practicing lawyer (1) To render a minimum of 60 hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within a period of twelve 12 months, with a minimum of 5 hours of free legal aid services each month (2) To coordinate with the Clerk of Court for cases where he may render free legal aid service and shall be required to secure and obtain a certificate from the Clerk of Court attesting to the number of hours spent rendering free legal aid services in a case [Sec. 5] Penalties Should a lawyer fail to render the minimum prescribed number of hours., he shall be required to explain why he was unable to do so. If no explanation has been given or if the National Committee on Legal Aid (NCLA) finds the explanation unsatisfactory, the NCLA shall make a report and recommendation to the IBP Board of Governors for the erring lawyer to be declared

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a member of the IBP who is not in good standing. After acceptance of the recommendation, the lawyer shall be declared a member not in good standing. He will be furnished a notice that includes a directive to pay P4,000.00 penalty which shall accrue to the special fund for the legal aid program of the IBP. Any lawyer who fails to comply with these duties for at least three consecutive years shall be the subject of disciplinary proceedings to be instituted motu proprio by the Committee on Bar Discipline. [Sec. 7] credit for mcleA lawyer who renders mandatory legal aid service for the required number of hours in a year for the 3year-period covered by a compliance period shall be credited: 2 credit units for legal ethics, 2 credit units for trial and pretrial skills, 2 credit units for alternative dispute resolution, 4 credit units for legal writing and oral advocacy, 4 credit units for substantive and procedural laws and jurisprudence and 6 credit units for such subjects as may be prescribed by the MCLE Committee A lawyer who renders mandatory legal aid service for the required number of hours in a year for at least 2 consecutive years within the 3 year-period covered by a compliance period shall be credited: 1 credit unit for legal ethics, 1 credit unit for trial and pretrial skills, 1 credit unit for alternative dispute resolution, 2 credit units for legal writing and oral advocacy, 2 credit units for substantive and procedural laws and jurisprudence and 3 credit units for such subjects as may be prescribed by the MCLE Committee [Sec. 8].

LEGAL AND JUDICIAL ETHICS

VI. Notarial Practice (A.M. No. 02-8-13-SC, as amended) A.M. No. 02-8-13-SC is referred to as the 2004 Rules on Notarial Practice [hereinafter Notarial Rules]. In 2008, it was amended by the Court en banc via 2 resolutions: Resolution dated February 12, 2008 and Resolution dated February 19, 2008.

[Note: Notarial Practice is one of the favorite questions asked in the Bar. – 2017 Faculty Ed.]

A. QUALIFICATIONS PUBLIC 1.

OF

NOTARY

Must be a Filipino citizen;

2. Must be over 21 years old; 3. Must be a resident of the Philippines for at least 1 year; 4. Must maintain a regular place of work or business in the city or province where com-mission is to be issued; 5. Must be a member of the Philippine Bar in good standing, with clearances from: The Office of the Bar Confidant of the Supreme Court, and the IBP; 6. Must not have been convicted in the first instance of any crime involving moral turpitude [Sec. 1, Rule III]

B. TERM OF OFFICE OF NOTARY PUBLIC Sec. 11, Rule III,. A person commissioned as

notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of 2 years commencing the first day of January of the year in which the commissioning is made, unless earlier revoked or the notary public has resigned under these Rules and the RoC

Sec. 13, Rule III. A notary public may file a written application with the Executive Judge for the renewal of his commission within 45 days before the expiration thereof.

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3. Jurats; Notarization is not an empty, meaningless and routinary act. It converts a private document into a public instrument, making it admissible as evidence without the necessity of preliminary proof of its authenticity and due execution [Sicat v. Ariola, A.C. 5864 (2005)]. Lawyers commissioned as notaries public are mandated to subscribe to the sacred duties appertaining to their office, such duties being dictated by public policy impressed with public interest [Mondejar v. Rubia, A.C. 5907 and 5942 (2006)]. C.1. POWERS A notary public can perform the following notarial acts: 1.

4. Signature witnessings 5. Copy certifications; and 6. Any other act authorized by the Notarial Rules [Sec. 1(a), Rule IV] a. Certifying the affixing of signature by thumb or other mark on an instrument or document presented for notarization [Sec. 1(b), Rule IV] b. Signing on behalf of a person who is physically unable to sign or make a mark on an instrument or document [Sec. 1(c), Rule IV]

Acknowledgments;

2. Oaths and affirmations;

Basic Definition

Acknowledgment

Oath or Affirmation Jurat Signature witnessing

Common Requisites

Represents to the notary public that (1) Appears in person before the the signature was voluntarily affixed for notary public and presents an the purposes stated in the instrument integrally complete instrument and declares that instrument was or document; executed as a free and voluntary act Avows under penalty of law to the whole (2) Is attested to be personally known to the notary public or truth [Sec. 2 (c), Rule II] identified by the notary public Sign the instrument and take an oath or through competent evidence of affirmation before the notary public as identity as defined by the to such instrument [Sec. 6 (c), (d), Rule Notarial Rules II] Signs the instrument in the presence of the notary public [Sec. 14 (c), Rule II]

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Copy Certification

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(4) The notary public writes below his signature: “Signature affixed by notary in presence of (names and addresses of person and two witnesses);” and

Refers to a notarial act in which a notary public: (PC-CD) (1) Is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable;

(5) The notary public notarizes his signature by acknowledgment or jurat [Sec. 1(c), Rule IV].

(2) Copies or supervises the copying of the instrument or document;

“Physically unable to sign” does not include the situation where a person is physically unable to sign because he is in another place [Uy (2004)].

(3) Compares the instrument or document with the copy; and (4) Determines that the copy is accurate and complete [Sec. 4, Rule II]

C.2. LIMITATIONS i. Relating to Notarial Acts

Certifying the Affixing of Signature by Thumb/Other Mark

A notary public shall not perform a notarial act outside his regular place of work or business; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction:

A notary public is authorized if: (1) The thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document;

(a) Public offices, convention halls, and similar places where oaths of office may be administered;

(2) Both witnesses sign their own names in addition to the thumb or other mark; (3) The notary public writes below the thumb or other mark: “Thumb or Other Mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public;” and

(b) Public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; (c) Hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and

(4) The notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat, or signature witnessing. [Sec. 1(b), Rule IV,]

(d) Any place where a party to an instrument or document requiring notarization is under detention [Sec. 2(a), Rule IV] A person shall not perform a notarial act if the person involved as signatory to the instrument or document:

Signing on Behalf of a Person Who is Physically Unable to Sign or Make a Mark A notary public is authorized if:

(a) Is not in the notary's presence personally at the time of the notarization; and

(1) The notary public is directed by the person unable to sign or make a mark to sign on his behalf;

(b) Is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by the Notarial Rules [Sec. 2(b), Rule IV].

(2) The signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the instrument or document; (3) Both witnesses sign their own names;

A notary public is disqualified from performing a notarial act if he: PAGE 71 OF 85

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(a) Is a party to the instrument or document that is to be notarized; (b) Will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by the Notarial Rules and by law; or (c) A notary public is disqualified from performing is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree [Sec. 3, Rule IV] A notary public shall not perform any notarial act described in the Notarial Rules if:

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(a) The person's identity is personally known to the notary public or proven through competent evidence of identity as defined in the Notarial Rules; (b) The person affixes a signature and thumb or other mark or other recognized identifier, in the notarial register in a separate, dated entry; (c) The person specifies the month, year, type of instrument or document, and name of the principal in the notarial act or acts sought; and (d) The person is shown only the entry or entries specified by him;

(a) The notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral;

The notarial register may be examined by a law enforcement officer in the course of an official investigation or by virtue of a court order.

(b) The signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; and

If the notary public has a reasonable ground to believe that a person has a criminal intent or wrongful motive in requesting information from the notarial register, the notary shall deny access to any entry or entries therein [Sec. 4, Rule VI]

(c) In the notary's judgment, the signatory is not acting of his or her own free will [Sec. 4, Rule IV]

D. NOTARIAL REGISTER

A notary public shall not: (a) Execute a certificate containing information known or believed by the notary to be false; (b) Affix an official signature or seal on a notarial certificate that is incomplete [Sec. 5, Rule IV] A notary public shall not notarize: (a) A blank or incomplete instrument or document; or (b) An instrument or document without appropriate notarial certification [Sec. 6, Rule IV ii. Relating to Notarial Register In the notary's presence, any person may inspect an entry in the notarial register, during regular business hours, provided; PAGE 72 OF 85

A notarial register refers to a permanently bound book with numbered pages containing a chronological record of notarial acts performed by a notary public [Sec. 5, Rule II]

Rule VI, Secs. I and 2 of the Notarial Rules

require a notary public to keep and maintain a Notarial Register wherein he will record his every notarial act. His failure to make the proper entry or entries in his notarial register concerning his notarial acts is a ground for revocation of his notarial commission [Agadan, et al. v. Kilaan, A.C. No. 9385 (2013)]. D.1. ENTRIES i. By the Notary Public Required to be entered at the time of notarization: (1) The entry number and page number;

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(2) The date and time of day of the notarial act;

(c) Whether notices were given, to whom and in what manner; where the same was made, when and to whom and where directed; and

(3) The type of notarial act; (4) The title or description of the instrument, document or proceeding;

(d) Of every other fact touching the same [Sec. 2, Rule VI]

(5) The name and address of each principal;

ii. By Other Persons

(6) The competent evidence of identity as defined by the Notarial Rules if the signatory is not personally known to the notary;

At the time of notarization, the notary's notarial register shall be signed or a thumb or other mark affixed by each: 1.

(7) The name and address of each credible witness swearing to or affirming the person's identity;

Principal;

2. Credible witness swearing or affirming to the identity of a principal; and

(8) The fee charged for the notarial act; (9) The address where the notarization was performed if not in the notary's regular place of work or business; and (10) Any other circumstance the notary public may deem of significance or relevance;

3. Witness to a signature by thumb or other mark, or to a signing by the notary public on behalf of a person physically unable to sign [Sec. 3, Rule VI] D.2. CLOSING At the end of each week, the notary public shall certify in his notarial register the number of instruments or documents executed, sworn to, acknowledged, or protested before him; or if none, this certificate shall show this fact. [Sec. 2(g), Rule VI]

(11) Reasons and circumstances for not completing a notarial act; (12) Circumstances of any request to inspect or copy an entry in the notarial register, including the: (a) Requester’s name; (b) Requester’s address; (c) Requester’s signature; (d) Requester’s thumbmark or other recognized identifier; (e) Evidence of requester’s identity; and (f) Reasons for refusal to allow inspection or copying of a journal entry; (13) Brief description of the substance of a contract presented for notarization;

D.3. SUBMISSION A certified copy of each month’s entries and a duplicate original copy of any instrument acknowledged before the notary public shall, within the first ten days of the month following, be forwarded to the Clerk of Court and shall be under the responsibility of such officer. If there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of certified copies herein required. [Sec. 2(h), Rule VI]

(14) In case of a protest of any draft, bill of exchange or promissory note, a full and true record of all proceedings in relation thereto and shall note therein:

E. JURISDICTION OF NOTARY PUBLIC AND PLACE OF NOTARIZATION

(a) Whether the demand for the sum of money was made, by whom, when and where;

A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court. [Sec. 11, Rule III]

(b) Whether he presented such draft, bill or note; PAGE 73 OF 85

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General rule: A notary public shall not perform a notarial act outside his regular place of work or business

(g) Fails to require the presence of a principal at the time of the notarial act;

Exception: on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction:

(h) Fails to identify a principal on the basis of personal knowledge or competent evidence;

1) Public offices, convention halls, and similar places where oaths of office may be administered; 2) Public function areas in hotels and similar places for the signing of documents requiring notarization; 3) Hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and 4) Any place where a party to the instrument or document requiring notarization is under detention. [Sec. 2, Rule VI]

F. REVOCATION OF COMMISSION 1.

The Executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied;

2. In addition, the Executive Judge may revoke the commission of, or impose appropriate administrative sanctions upon, any notary public who: (a) Fails to keep a notarial register; (b) Fails to make the proper entry or entries in his notarial register concerning his notarial acts; (c) Fails to send the copy of the entries to the Executive Judge within the first ten days of the month following; (d) Fails to affix to acknowledgments the date of expiration of his commission; (e) Fails to submit his notarial register, when filled, to the Executive Judge; (f) Fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the judge; PAGE 74 OF 85

(i) Executes a false or incomplete certificate under Sec. 5, Rule IV; (j) Knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and (k) Commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of com-mission or imposition of administrative sanction [Sec. 1(a) and (b), Rule XI,] A notary public should not notarize a document unless the person who signed the same is the very same person who executed and personally appeared before him to attest to the contents and the truth of what are stated therein. Without the personal appearance of the person who actually executed the document, the notary public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or deed. When a lawyer commissioned as a notary public fails to discharge his duties as such, he is meted the penalties of revocation of his notarial commission, disqualification from being commissioned as a notary public for a period of 2 years, and suspension from the practice of law for 1 year. [Agbulos v. Viray , G.R. No. 7350 (2013)]

G. COMPETENT EVIDENCE OF IDENTITY Competent evidence of identity means the identification of an individual based on: (1) At least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver's license, Professional Regulation Commission ID, NBI

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clearance, police clearance, postal ID, voter’s ID, Barangay cetification, GSIS ecard, SSS card, Philhealth card, senior citizen car, OWWA ID, OFW ID, seaman’s book, alien’s certificate of registration/immigrant certificate of registration, government office ID, certification from the NCWDO, DSWD certification; or (2) The oath or affirmation of: (a) One credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual; or (b) Two credible witnesses neither of whom is privy to the instrument, document or trans-action who each personally knows the individual and shows to the notary public documentary identification. [Sec. 12, Rule II, as amended by Resolution dated Feb. 19, 2008]

H. SANCTIONS H.1. Disciplinary Sanctions The Executive Judge may motu proprio initiate administrative proceedings against a notary public and impose the appropriate administrative sanctions on the grounds for revocation of commission mentioned [Sec. 1(d), Rule XI] H.2. CRIMINAL SANCTIONS The Executive Judge shall prosecution of any person who: 1.

cause

the

Knowingly acts or otherwise impersonates a notary public;

2. Knowingly obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and 3. Knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct. [Sec. 1, Rule XII]

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VI. Canons of Professional Ethics A. ORIGIN In 1917 and 1946, The Philippine Bar Association (PBA) adopted the American Bar Association (ABA)’s Canons of Professional Ethics (first Canons 1 to 32, then Canons 33 to 47). In 1980, the IBP adopted a proposed Code of Professional Responsibility, which was later approved and promulgated by the SC as the present Code of Professional Responsibility [Agpalo (2004)].

B. LEGAL STATUS While the PBA, a civic non-profit association and a private entity of limited membership within the Philippine bar, enjoys high regard in the legal community, the rules or canons it has adopted are per se binding only on its members. It would be grave error to declare that the Canons of Professional Ethics, on their own, serves as an indisputable source of obligations and basis of penalties imposable upon members of the Philippine legal profession. This would violate the long-established constitutional principle that it is the Supreme Court which is tasked with the promulgation of rules governing the admission to the practice of law, as well as the pleading, practice and procedure in all courts. If provisions of the Canons of Professional Ethics have jurisprudentially been enforced, or acknowledged as basis for legal liability by the Supreme Court, they may be recognized as a binding standard imposable upon members of the bar, not because said canons or the PBA itself said so, but because the Court said so [Tinga, J., Sep. Opinion, PCGG v. Sandiganbayan, supra.]

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I. Administrative Jurisdiction over Judges and Justices

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supervisory or administrative [Agpalo, (2004)].

sanction

Thus, the Ombudsman has no power to entertain and investigate administrative complaints against judges and court personnel. Complaints against judges and court personnel should accordingly be filed with the Supreme Court [Maceda v. Vasquez, supra.; Dolalas v. Office of the Ombudsman, G.R. 118808 (1996)].

A. SUPREME COURT Under Sec. 2, Art. XI , 1987 Constitution, Justices of the Supreme Court may be removed from office, on impeachment, and conviction of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust; all other Justices and judges from the Court of Appeals to the lowest level may be removed from office as provided by law, but not by impeachment.

Administrative jurisdiction over a court employee belongs to the Supreme Court, regardless of whether the offense was committed before or after employment in the judiciary. Indeed, the standard procedure is for the CSC to bring its complaint against a judicial employee before the Office of the Court Administrator [Ampong v. CSC, G.R. 167916 (2008)].

According to J. Carpio’s dissenting opinion in

In re: Charges of Plagiarism, etc. against Associate Justice del Castillo, A.M. 10-7-17-SC

In order for the Court to acquire jurisdiction over an administrative case, the complaint must be filed during the incumbency of the respondent. Once jurisdiction is acquired, it is not lost by reason of respondent’s cessation from office [Re: Missing Exhibits and Court

(2011), pursuant to Sec. 3 (1) and (6), Art. XI, 1987 Constitution, the sole disciplining authority (i.e. exclusive authority to discipline) of all impeachable officers, including Justices of the Supreme Court, is Congress. He further says that while impeachment is often described as a political process, it also functions as the equivalent of administrative disciplinary proceedings against impeachable officers since impeachable officers are not subject to administrative disciplinary proceedings either by the Executive or Judicial branch, in the same manner that nonimpeachable officers are subject.

Properties in Regional Trial Court, Branch 4, Panabo City, Davao Del Norte, AM. 10-2-41RTC (2013)]. Pursuant to Sec. 11, Art. VIII, 1987 Constitution, the Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

B. ALL OTHER COURTS Pursuant to Sec. 6, Art. VIII, 1987 Constitution, only the Supreme Court can oversee compliance with the law and the ROC on the part of the Presiding Justice of the CA down to the lowest municipal trial court judge and take the proper administrative action against them if they commit any violation thereof, requiring PAGE 77 OF 85

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II. Disqualifications of Justices and Judges [Rule 137, ROC]

to the prejudice of a just decision. Where this is probable or even only possible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza [Javier v. COMELEC, G.R. L-68379-81 (1996)].

NOTE: Asked 3 times in the Bar; 1994, 1991, 2008. [Lex Pareto (2014)]

GROUNDS FOR COMPULSORY INHIBITION OF A JUDGE – ASKED IN 2004 AND 2010 [LEX PARETO (2014)]

A. COMPULSORY DISQUALIFICATION ACTUAL BIAS OR PREJUDICE No judge or judicial officer shall sit in any case, without the written consent of all parties in interest and entered upon the record, in which: (1) He, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise; or (2) He is related to either party within the 6th degree of consanguinity or affinity, or to counsel within the 4th degree, computed according to the rules of civil law; (3) He has been executor, administrator, guardian, trustee or counsel; or (4) He has presided in any inferior court when his ruling or decision is the subject of review [par. 1, Sec. 1]. The rule on compulsory disqualification of a judge to hear a case rests on the salutary principle that no judge should preside in a case in which he is not wholly free, disinterested, impartial and independent. A judge has both the duty of rendering a just decision and the duty of doing it in a manner completely free from suspicion as to its fairness and as to his integrity. The law conclusively presumes that a judge cannot objectively or impartially sit in such a case and, for that reason, prohibits him and strikes at his authority to hear and decide it, in the absence of written consent of all parties concerned. The purpose is to preserve the people's faith and confidence in the courts' justice [Garcia v. De La Peña, A.M. MTJ-92687 (1994)]. The relationship of the judge with one of the parties may color the facts and distort the law PAGE 78 OF 85

In Umale v. Villaluz (1973), a judge inhibited himself from trying a robbery case due to his personal knowledge of the case. The Supreme Court stated that it is possible that the respondent Judge might be influenced by his personal knowledge of the case when he tries and decides the same on the merits, which would certainly constitute a denial of due process to the party adversely affected by his judgment or decision. Thus, it is best that, after some reflection, the judge, on his own initiative disqualified himself from hearing the robbery case and thereby rendering himself available as witness to any of the parties subject to cross-examination. In People v. Gomez (1967), the judge dismissed criminal informations on the suspicion, arising from a dinner invitation from a stranger and a subsequent personal investigation, that the court was being used as a forum for extortion and exploitation of the persons charged. The Supreme Court found this unstated extraneous matter makes the dismissal as one affected with partiality and bias. The prayer of the judge to be disqualified in hearing the case because he has lost all respect in the manner in which the prosecutor has been prosecuting the case was granted. ECONOMIC INTEREST OF JUDGE OR HIS FAMILY In Oktubre v. Velasco (2004), a municipal judge, as private complainant, caused three criminal complaints to be filed before his own court. He also issued a warrant of arrest and subpoenas before finally inhibiting himself from hearing the cases. The Supreme Court found him guilty of grave misconduct, gross ignorance of the law and grave abuse of

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authority, and dismissed him from service. It stated that the idea that a judge can preside over his own case is anathema to the notion of impartiality and that his subsequent inhibition from the three cases does not detract from his culpability for he should not have taken cognizance of the cases in the first place. REVIEWING OWN CASES In Sandoval v. CA (1996), the Supreme Court that an Associate Justice who only partly presided over a case in the trial court and who did not render the final decision cannot be said to have been placed in a position where he had to review his own decision and, as such, was not legally bound, on this ground, to inhibit himself as ponente of the case. Nevertheless, it was held that he should have voluntarily inhibited himself for his earlier involvement in the case constitutes just or valid reason under Sec. 1, Rule 137. A judge should not handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and partiality. PREVIOUSLY SERVED AS COUNSEL A judge may validly disqualify himself due to his bias and prejudice. [However,] bias and prejudice cannot be presumed [Soriano v. Angeles (2000)]. The mere imputation of bias or partiality is not sufficient for a judge to inhibit, especially when the charge is without basis. It must be proven with clear and convincing evidence. [Gochan v. Gochan (2003)] Moreover, it has been held that bias and prejudice must be shown to have stemmed from an extra-judicial source and result in an opinion on the merits on some basis other than the evidence presented [Aleria v. Velez (1998)]. OTHER EXAMPLES Disqualification was also allowed when the judge has been previously associated with a party as counsel, [Austria v. Masaquel (1978)] notarized the affidavit of a person to be presented as witness [Mateo v. Villaluz (1973)], if he is a material witness to a case [AmJur; Lewis v. State (2002)] PAGE 79 OF 85

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B. VOLUNTARY DISQUALIFICATION A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned [par. 2, Sec. 1]. Sec. 5, Canon 3, New Code of Judicial Conduct of the Philippine Judiciary, A.M. 03-05-91-SC (2004): Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where: (a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; (b) The judge previously served as a lawyer or was a material witness in the matter in controversy; (c) The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy; (d) The judge served as executor, administrator, guardian, trustee, or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; (e) The judge's ruling in a lower court is the subject of review; (f) The judge is related by consanguinity or affinity to a party litigant within the 6th civil degree or to counsel within the fourth civil degree; or (g) The judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings.

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A judge must maintain and preserve the trust and faith of the parties-litigants. He must hold himself above reproach and suspicion. At the very first sign of lack of faith and trust to his actions, whether well-grounded or not, the judge has no other alternative but inhibit himself from the case. A judge may not be legally prohibited from sitting in a litigation, but when circumstances appear that will induce doubt to his honest actuations and probity in favor of either party, or incite such state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. The better course for the judge under such circumstances is to disqualify himself. That way, he avoids being misunderstood, his reputation for probity and objectivity is preserved [Bautista v. Rebueno, G.R. L-46117 (1978)]. A judge should not be disqualified because he was a classmate (or a co-member in a fraternity) of one of the counsels if there is no proof that such relationship results in actual bias or prejudice. To allow disqualification would unnecessarily burden other trial judges to whom the case will be assigned. Confusion would result, because a judge would then be barred from sitting in a case whenever one of his former classmates (and he could have many) appeared. [Masadao and Elizaga, cited in Lex Pareto (2014)]

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The mere imputation of bias or partiality is not enough ground for inhibition, especially when the charge is without basis. Extrinsic evidence must further be presented to establish bias, bad faith, malice, or corrupt purpose, in addition to palpable error which may be inferred from the decision or order itself [Philippine Commercial International Bank v. Dy Hong Pi, G.R. 171137 (2009)].

C. OBJECTION The objecting party to his competency may, in writing, file with the subject official his objection and its grounds. The said official may, in accordance with his determination of the question of his disqualification, either: 1) proceed with the trial or 2) withdraw therefrom. The decision of the said official shall be in writing and filed with the other papers in the case, but no appeal or stay shall be allowed from, or by reason of, his decision in favor his own competency, until final judgement in the case [Sec. 2].

Mere fact that a counsel who is appearing before a judge was one of those who recommended him to the Bench is not a valid ground from voluntary inhibition. “Utang na loob” per se should not be a hindrance to the administration of justice. Nor should recognition of such value prevent the performance of judicial duties. However, where the judge admits that he may be suspected of surrendering to the persuasions of utang na loob, and he may succumb to it considering that he and members of the family, no less shall ever remain obliged in eternal gratitude to the recommending counsel, the judge should inhibit himself. [Query of Executive Judge Estrella Estrada, etc, A.M. No. 87-9-3918-RTC (1987) cited in Lex Pareto (2014)] PAGE 80 OF 85

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(3) The House refers the complaint to the proper committee;

III. Discipline of Members of the Judiciary and Initiation of Complaint against Judges and Justices TENURE The members of the Supreme Court and judges of lower courts shall hold office during a good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office [Sec. 11, Art. VIII, 1987 Constitution].

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(4) The committee holds a hearing, approves the resolution calling for impeachment, and submits the same to the House; (5) The House considers the resolution and votes to approve it by at least one-third of all its members, which resolution becomes the article of impeachment to be filed with the Senate when approved;

and

(6) The Senate tries the public official under the article [J. Abad, Separate Concurring Opinion, Gutierrez v. HOR Committee on Justice, G.R. 193459 (2011)].

B. LOWER COURTS AND JUSTICES OF COURT OF APPEALS, AND SANDIGANBAYAN, AND COURT OF TAX APPEALS (RULE 140, ROC)

A. SUPREME COURT Members of the Supreme Court may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust [Sec. 2, Article XI, 1987 Constitution].

HOW INITIATED: Proceedings for the discipline of judges of regular and special courts and justices of the Court of Appeals and the Sandiganbayan may be instituted: (1) Motu propio by the Supreme Court;

The impeachment of public officials has been established for removing otherwise constitutionally tenured and independent public officials for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. The power to initiate impeachment cases rests with the House of the Representatives while the power to try the same rests with the Senate.

(2) Upon the verified complaint, supported by affidavits of persons who have personal knowledge of the facts alleged therein or by documents which may substantiate said allegations; or (3) Upon an anonymous complaint, supported by public records of indubitable integrity. The complaint shall be in writing and shall state clearly and concisely the acts and omissions constituting violations of standards of conduct prescribed for judges, the RoC, or the Code of Judicial Conduct [Sec. 1].

PROCEDURE Based on Sec. 3, Article VI, 1987 Constitution, the steps leading to impeachment are as follows:

The right to institute disbarment proceedings is not confined to clients nor is it necessary that the person complaining suffered injury from the alleged wrongdoing. The procedural requirement observed in ordinary civil proceedings that only the real party-ininterest must initiate the suit does not apply in

(1) A verified complaint for impeachment is filed by a member of the House or endorsed by him; (2) The complaint is included in the order of business of the House; PAGE 81 OF 85

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disbarment cases. Disbarment proceedings are matters of public interest and the only basis for the judgment is the proof or failure of proof of the charges [Figueros v Jimenez, A.C. 9116 (2014)]. INVESTIGATION Upon the filing of the comment of the respondent or upon the expiration of the period for such filing, which is ten days from the date of service to him of the copy of the complaint [Sec. 2], the SC shall: (1) Refer the matter to the Office of the Court Administrator for evaluation, report, and recommendation; or (2) Assign the case for investigation, report, and recommendation to: (a) A retired member of the Supreme Court, if the respondent is a justice of the Court of Appeals and the

Sandiganbayan;

(b) A justice of the Court of Appeals, if the respondent is a judge of a Regional Trial Court or of a special court of equivalent rank; or

confidential and shall be for the exclusive use of the Supreme Court. A copy of the decision or resolution of the court shall be attached to the record of the respondent in the OCA [Secs. 5 and 12] The Supreme Court shall take action on the report as the facts and the law may warrant [Sec. 6] AUTOMATIC CONVERSION OF ADMINISTRATIVE CASES TO DISCIPLINARY PROCEEDINGS Pursuant to A.M. No. 02-9-02-SC, administrative cases against justices of the Court of Appeals and the Sandiganbayan, judges of regular and special courts, and court officials who are lawyers, shall also be considered a disciplinary action against them, if they are based on grounds which are likewise grounds for the disciplinary action of members of the bar for: (1) Violation of the Lawyer's Oath; (2) Violation of the Code of Professional Responsibility;

(c) A judge of the Regional Trial Court, if the respondent is a judge of an inferior court [Sec. 3, Rule 140].

(3) Violation of the Professional Ethics; or

The investigating justice or judge shall terminate the proceedings: (1) Within 90 days from the date of its commencement; or (2) Within such extension as the Supreme Court may grant [Sec. 4]. REPORT AND ACTION Within 30 days from termination, the investigating justice or judge shall submit to the Supreme Court a report containing his findings of fact and recommendation, accompanied by the evidence and pleadings filed by the parties. Such report shall be

Canons

of

(4) Such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers.

HEARING AND TERMINATION The investigating justice of judge shall set a day for the hearing and send notice to the parties. If the respondent fails to appear, the investigation shall proceed ex parte.

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The respondent is required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinarily sanctioned as a member of the bar. Judgment in both respects may be incorporated in one decision or resolution. EFFECT OF WITHDRAWAL OR DESISTANCE The actuations of a judge seriously affect the public interest inasmuch as they involve the administration of justice. It is for this reason that a motion to withdraw a complaint will not justify the dismissal of the administrative case against the judge. To condition administrative actions upon the will of every complainant, who may, for one

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reason or another, condone a detestable act, is to strip the Supreme Court of its supervisory power to discipline erring members of the judiciary [Anguluan v. Taguba (1979)]. Complainant's desistance is not an obstacle to the taking of disciplinary action against a judge if the record reveals that he had not performed his duties properly [Espayos v. Lee (1979)].

C. GROUNDS AND SANCTIONS General rule: A judge cannot be subjected to liability – civil, criminal, or administrative – for any his official acts, not matter how erroneous, as long as he acts in good faith (i.e. in the absence of fraud, malice, dishonesty, or corruption) [Agpalo (2004)]. Ratio: A judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. This concept of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity and independence of the judiciary [Pabalan v. Guevarra (1976)]. Exception: A judge may be held criminally, civilly or administratively liable for malfeasance or misfeasance in office [Valdez v. Valera, A.M. 1628-CAR (1978)]. Administrative charges are classified as serious, less serious, or light [Sec. 7]

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Grounds

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Serious Charges (1) Bribery, direct or indirect; (2)

(3)

(4)

(5) (6)

Less Serious Charges Light Charges (1) Undue delay in (1) Vulgar and rendering a decision unbecoming Dishonesty and violations of the or order, or in conduct; Anti-Graft and Corrupt Practices transmitting the Law (RA 3019); (2) Gambling in records of a case; public; Gross misconduct constituting (2) Frequently and violations of the Code of Judicial (3) Fraternizing with unjustified absences Conduct; lawyers and without leave or litigants with Knowingly rendering an unjust habitual tardiness; pending judgment or order as determined (3) Unauthorized case/cases in his by a competent court in an practice of law; court; and appropriate proceeding; (4) Violation of (4) Undue delay in Conviction of a crime involving Supreme Court the submission moral turpitude; rules, directives, and of monthly Willful failure to pay a just debt; circulars; reports.

(7) Borrowing money or property from lawyers and litigants in a case pending before the court; (8) Immorality; (9) Gross ignorance of the law or procedure; (10) Partisan political activities; and (11) Alcoholism and/or vicious habits [Sec. 8]. Sanctions [Sec. 11]

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(1) Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Forfeiture of benefits does not include accrued leave credits; (2) Suspension from office without salary and other benefits for more than three but not exceeding six months; or

(5) Receiving additional or double compensation unless specifically authorized by law; (6) Untruthful statements in the certificate of service;

and

(7) Simple misconduct [Sec. 9] (1) Suspension from office without salary and other benefits for not less than one nor more than three months; or

(1) A fine of not less than P1,000.00 but not exceeding P10,000.00;

(2) A fine of more than

(2) Censure;

P10,000.00 but not exceeding P20,000.00

(3) A fine of more than P20,000.00 but not exceeding P40,000.00

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and/or

(3) Reprimand; (4) Admonition with warning.

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LEGAL AND JUDICIAL ETHICS

The word “misconduct” implies a wrongful intention and not a mere error or judgment. For serious [or gross] misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules [In re: Impeachment of Horrilleno (1922)].

(3) Extorting money from a party-litigant who has a pending case [Haw Tay v. Singayao (1988)]:

The commission of two or administrative offenses alleged in the same administrative complaint may aggravate the offense and render the same serious, which will warrant dismissal of the judge from the service [Agpalo (2004)].

(6) Delay in the disposition of cases in violation of the canon that a judge must promptly dispose of all matters submitted to him [Balagot v. Opinion (1991)];

The enumerated acts are not exclusive. Other acts analogous thereto and conviction in a criminal prosecution may also be grounds for discipline, as the word “include” in enumerating the charges implies and as rulings of the Supreme Court on disciplinary cases show [Agpalo (2004)].

(8) Unawareness of or unfamiliarity with the application of the Indeterminate Sentence Law and duration and graduation of penalties [In re: Paulin (1980)];

(4) Solicitation of donation for office equipment [Lecaroz v. Garcia (1981)]; (5) Frequent unauthorized absences in office [Municipal Council of Casiguruhan, Quezon v. Morales (1974)];

(7) Unduly granting repeated motions for postponement [Araza v. Reyes (1975)];

(9) Reducing to a ridiculous amount (P6,000.00) the bail bond of the accused murderer, enabling him to escape the toils of the law [Soriano v. Mabbayad (1975)].

Like misconduct, inefficiency as a ground for disciplinary action must be serious or one which is weighty or momentous and not trifling. Negligence in the performance of duty, if reckless in character, could amount to serious or inexcusable inefficiency [Agpalo (2004)] ILLUSTRATIVE CASES [as cited in Agpalo (2004)] (1) Failure to deposit funds with the municipal treasurer or produce them despite promise to do so [Montemayor v. Collado (1981)];

(10) Imposing the penalty of subsidiary imprisonment on a party for failure to pay civil indemnity in violation of RA 5465 [Monsanto v. Palarca (1983)]. RECENT CASES (1) Directing a subordinate to alter the TSN by incorporating statements pertaining to substantial matters not actually made during the hearing [Balanay v. White, A.M. No. RTJ-16-2443, (2016)]

(2) Misappropriation of fiduciary funds (i.e., proceeds of cash bail bond) by depositing the check in a personal account, thus converting the trust fund to personal use [Barja v. Beracio (1976)];

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